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America Votes!: Challenges to Modern Election Law and Voting Rights

America Votes!: Challenges to Modern Election Law and Voting Rights

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America Votes!: Challenges to Modern Election Law and Voting Rights

Lunghezza:
734 pagine
9 ore
Pubblicato:
Sep 1, 2016
ISBN:
9781634254236
Formato:
Libro

Descrizione

This book brings together accomplished practitioners and academic experts from the left, right and middle of the political spectrum in a way that promotes maximum balance in a detailed discourse on a highly volatile subject. It is unique in the way it unpacks the complex issues surrounding election law and voting rights that are at the epicenter of an informed public’s chief concerns during the 2016 Presidential election year. This book provides a generous, diverse and critically important glimpse into the different perspectives of multifaceted issues surrounding voter suppression, voter fraud, voter ID, election recounts and challenges. It brings a fresh perspective to the very meaning of “right to vote” in the context of immigration and state efforts to limit the electoral franchise. The contributors include a multi-partisan array of seasoned election law practitioners blended with observation and analysis by dispassionate academic experts who have closely observed the electoral process.

Pubblicato:
Sep 1, 2016
ISBN:
9781634254236
Formato:
Libro

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America Votes! - American Bar Association

Index

Foreword

JEAN-PIERRE KINGSLEY*

The essays in this work, written by eminent experts in their field, speak volumes to the complexity of the federal electoral system in the United States and how that system is inextricably bound in its courts, often resulting in an uncomfortable relationship between the political world and the judiciary. These essays are equally accessible to non-Americans interested in gaining a more profound understanding of the first electoral system in an established democracy devised for the people.

To Canadian eyes, these essays definitely bring home the point that a major difference between Canadians and Americans is how we live our electoral systems and our political processes. This may be explained in part by the fact that Canada has a (British) parliamentary system, and the United States a presidential one. Our historical trajectories differ significantly as well, the American Civil War being but one example, and the American Revolution another.

There are obviously similarities; however, it is more to the point to dwell on major differences. It may be useful to set the stage by providing a brief overview of the Canadian electoral system. The Office of the Chief Electoral Officer (CEO) of Canada is an independent nonpartisan agency (in effect, a one-person commission) established in law in 1920, reporting directly to Parliament. The CEO is elected by the House of Commons (all six were elected unanimously) and, like all judges in Canada, can only be removed upon a majority vote in both the House of Commons and the Senate (an appointed body).

The CEO has the statutory authority to spend the money required to achieve the purposes of the statute. Parliament votes the expenditures after the fact. The CEO may also adapt the statute to fit the exigencies of the situation in unforeseen circumstances and in emergencies. The CEO runs the election from start to finish under one set of rules across the whole country. Electors have only one decision to make: they vote for their member of Parliament. There is no other office to fill, and there is no referendum or plebiscite. There is only one definition of an elector and it includes all inmates, felons, and prisoners, as a result of a Supreme Court decision flowing from the right to vote (and to be a candidate) in article 3 of the Charter of Rights and Freedom forming part the Constitution of Canada since 1980. Money in federal politics and electoral campaigns in Canada is a regulated substance: only an individual Canadian or resident of Canada may make a contribution to a political party or a candidate, up to $1,500 a year, doubled the year of an election. No union, no corporation, no association (for profit or not), no PAC, no super PAC may make a contribution in money or in kind. Spending limits on a party fielding a full slate of candidates is approximately $25,000,000, and on a candidate an average of $100,000.

During an electoral campaign (usually 37 days), third parties may also participate by spending up to $200,000 nationally on advertising for or against a party or its policies or programs. In effect, the Supreme Court of Canada considered that free speech only assumes its full meaning when a reasonable limit is set on all intervenors. Moreover, collusion between them and political parties and candidates is illegal.

There are divergences concerning redistricting in the United States and redistribution in Canada. In Canada, each province is allocated a number of seats in the House of Commons, based generally on population. After every decennial census, an independent commission is established for each province and their decision on electoral boundaries cannot be overturned by the House of Commons. The commissions set the boundaries in accordance with population and in accordance with the concept of community of interest. The Supreme Court has decreed that important variations in population are permissible in a geographically dispersed country like Canada with sparse populations and that effective representation is the prevalent value. Each commission is presided by a judge appointed by the chief justice of each province and assisted by two commissioners appointed by the Speaker of the House of Commons after wide consultation.

Enforcement of the statute is shared among the chief electoral officer, the commissioner of Canada Elections, and the director of Public Prosecutions. The CEO examines and publishes financial reports and receives complaints, referring possible infractions to the commissioner of Canada Elections for investigation, who recommends prosecution to the director of Public Prosecutions when warranted.

As for proof of identification (ID), this is recently required, going one better by including proof of address. Different documents are approved by the CEO for this purpose, including library cards, utility bills, and drivers’ licenses, but the CEO cannot deem acceptable the very document he sends electors before polling day informing them of their being on the list of electors as well as the different means of voting. There is no provisional voting, and vouching by another elector already on the list for the same poll of a maximum of 350 electors is only permissible if one provides two pieces of ID. There is a case before the courts on this matter.

This information comes from the Register of Electors maintained by the CEO and updated between elections from driver’s license data, vital statistics data, income tax filings, provincial elections, and elector-initiated registration, and changes at all times, including online.

At the launch of the election some 92 percent of electors are registered and some 2–3 percent are added during the election period, including on polling day.

These differences are not minor, especially in light of the fact that they are occurring in two neighboring countries with long-established representative democracies. This behooves us to consider seriously what the essential and fundamental values of an electoral system are beyond considering traditions as sacrosanct and indispensable. Otherwise we risk missing opportunities to improve our systems and make them relevant to the people.

*Jean-Pierre Kingsley was Canada’s chief electoral officer from 1990 to 2007. During his mandate, he instituted reforms aimed at ensuring and respecting Canada’s Charter of Rights and Freedoms and oversaw the modernization of Canada’s electoral system, including the 36-day electoral calendar, the digitization of electoral geographic systems, and the establishment of the National Register of Electors. After leaving the post of chief electoral officer, he served as president and CEO of the International Foundation for Electoral Systems, leading international observer missions for elections in Iraq and Haiti, among others. Prior to joining the federal public service, Jean-Pierre was a hospital administrator and held positions in the private sector. He holds a Bachelor of Commerce degree and a Master’s in Hospital Administration, both from the University of Ottawa.

Preface

MYLES V. LYNK*

The American Bar Association’s publication of this third edition of America Votes! Challenges Facing Modern Election Law and Voting Rights, could not be more timely. In 2016, the United States will elect a new president as well as new members to the Senate and House of Representatives who will affect the ability of whoever is elected president to lead effectively. State and local elections will also take place. And while federal elections in a presidential election year are always declared to be, the most important ever, even without making that claim, there can be no doubt that the 2016 elections will be hugely significant, not only for the United States but for the world.

Thus it is important that we explore, as do the authors of the chapters in this book, the administration and technology of elections, voting rights, the access of citizens to the ballot, and redistricting. Specific issues addressed in this edition include how to defeat voter suppression initiatives, the use of census data to prove citizenship in voting rights litigation, the increasing importance of early voting in all elections, the administrative challenges presented by recounts and post-election contests and audits, whether the Federal Election Commission is fulfilling its mandate on campaign finance disclosures, and the challenges presented by one-person, one-vote redistricting.

Any discussion of modern election law and voting rights in America will take place in the shadow of major changes to campaign finance laws and voting rights laws as a result of recent decisions by the Supreme Court of the United States. Whether one agrees or disagrees with the holding of the Court in these cases, there can be no doubt that they have transformed the context within which these issues are considered. On the role of large donors in election campaigns, these elections will take place in the shadow of the U.S. Supreme Court’s decision in Citizens United v. Federal Election Commission,¹ which declared unconstitutional those provisions of the Federal Election Campaign Act of 1971, as amended, and the Bipartisan Campaign Reform Act of 2002, which prohibited most corporations and labor unions from making independent expenditures in federal election campaigns on behalf of or in opposition to a candidate or candidates, and from financing electioneering communications in federal elections. Prior to Citizens United, the Supreme Court had upheld the ban on corporate independent expenditures in Austin v. Michigan State Chamber of Commerce ² and the ban on corporate spending for electioneering communications in McConnell v. Federal Election CommissionCitizens United overturned both Austin and McConnell.

While campaign finance is not directly addressed in this edition of America Votes!, the importance of money in American elections is significant and creates a context within which issues of election law and voting rights should be considered. For example, in 2012 the top 32 super PAC donors gave an average of $9.9 million each, matching the $313 million that President Obama and Mitt Romney raised from all of their small donors combined. Nearly 60 percent of super PAC funding came from just 159 donors contributing at least $1 million. More than 93 percent of the money super PACs raised came in contributions of at least $10,000—from just 3,318 donors, or the equivalent of 0.0011 percent of the U.S. population. For-profit corporations were the second-largest donors to super PACs, accounting for 12 percent of all contributions. Businesses provided a significant portion of the funds for some of the most active super PACs, including 18 percent of Restore Our Future’s funds and 52.7 percent of Freedomworks for America’s funds.

On voting rights, in 2013 in Shelby County v. Holder,⁵ the Supreme Court struck down certain provisions of the Voting Rights Act of 1965 as unconstitutional. Section 4 of the Voting Rights Act, originally passed in 1965 and most recently updated by Congress in 1975, determined which states must receive clearance from the Justice Department or a federal court in Washington, D.C., before they made minor changes to voting procedures, like moving a polling place, or major ones, like redrawing electoral districts. Section 5 of the Act, which defines the preclearance requirement, was originally scheduled to expire in five years, but Congress repeatedly extended it: for five years in 1970, seven years in 1975, and 25 years in 1982. Congress renewed the Act in 2006 after holding extensive hearings on the persistence of racial discrimination at the polls, and in doing so extended the preclearance requirement for 25 years. However, it relied on data from the 1975 reauthorization to decide which states and localities were covered. It was reliance that the Court’s majority held to be improper, as it bore no logical relationship to the present day. The decision in Shelby County struck down section 4 of the Voting Rights Act—which provided the formula that identified which states would be subject to the reporting and preclearance certification requirement of the Act—thereby effectively eliminating the force and effect of section 5. Since this decision was announced, there is evidence to suggest that at least some of the states previously subject to the Act have now moved to utilize voter ID requirements and other strategies to suppress voter turnout from certain communities.⁶ Of course there are other issues affecting voting rights in America today—for example, the disenfranchisement of convicted felons after their incarceration has ended—that are not directly impacted by the Shelby case and are addressed in this volume. But both Citizens United and Shelby County remind us of the importance of the electoral process and of voting rights for all Americans.

Thus, there is a real need for this newest edition of America Votes! I commend Benjamin E. Griffith, the editor, and the authors of the different chapters on addressing a host of significant issues affecting one of our most important constitutional rights at an important moment in our nation’s history. This edition will provide guidance and information to lawyers and others who are helping individuals and communities that are seeking to participate fully as voters in our representative democracy.

Notes

1. 558 U.S. 310 (2010).

2. 494 U.S. 652 (1990).

3. 540 U.S. 93 (2003).

4. BLAIR BOWIE & ADAM LIOZ, BILLION DOLLAR DEMOCRACY: THE UNPRECEDENTED ROLE OF MONEY IN THE 2012 ELECTIONS (Demos & U.S. PIRG 2013), available at http://www.demos.org/sites/default/files/publications/billion.pdf.

5. 133 S. Ct. 2612 (2013).

6. See Tomas Lopez, Shelby County: One Year Later, BRENNAN CTR. FOR JUST. (June 24, 2014), available at http://www.brennancenter.org/analysis/shelby-county-one-year-later.

*Past chair, ABA Section of Civil Rights and Social Justice; professor of law, Sandra Day O’Connor College of Law, Arizona State University.

About the Editor

Ben Griffith is principal in Griffith Law Firm in Oxford, Mississippi. He has enjoyed a robust federal and state civil litigation practice for the past 40 years. His work focuses on representation of municipalities, counties, school boards, multi-county commissions and other state and local government entities, private sector insureds and self-insured institutional clients. He is an adjunct professor at the University of Mississippi School of Law (Municipal Law Practice Skills). He earned his JD in 1975, represented a county board of supervisors for 21 years, and has served as board attorney for a 17-county joint water management district for 27 years.

In addition to serving as chief legal officer for county officials in all local government matters relating to civil rights litigation and voting rights litigation, Ben has defended over 52 cities, counties, and school districts and scores of public officials in governmental, First Amendment, and Section 1983 civil rights litigation in federal and state courts in Mississippi, Alabama, Georgia, Maryland, North Carolina, Ohio, South Carolina, Tennessee, and Texas. His work on the international level extends to consultation, training, peer review publications, and lectures on local governance structures, governmental transparency, strengthening of emerging democracies, anti-corruption, and pragmatic application of the Rule of Law.

Ben has been active in the ABA for many years. He has served in the ABA House of Delegates continuously since 2009 as section delegate from the Section of State & Local Government Law and is past-chair of the ABA Section of State & Local Government Litigation, serving as its International Committee chair. He is also co-chair of the Section of International Law’s Task Force on International Election Law and is that section’s liaison to the International Municipal Lawyers Association, where he is an IMLA Local Government Fellow, and the World Jurist Association, for which he serves as National President for the United States. He is past-President of the National Association of County Civil Attorneys and past-Chair of the Mississippi Association of County Board Attorneys.

He has published scores of articles and publications, including serving as editor and chapter author of America Votes: Challenges in Voting Rights and Election Law (1st ed. 2008, 2d ed. 2012, and 3rd ed. 2016). He has been invited to speak at over 96 seminars and conferences on election law, federal civil litigation, and governance subjects within his expertise, throughout the United States, Canada, Mexico, Scotland, Continental Europe, Eurasia, Israel, and the PRC. His peers have honored him with selection to Best Lawyers in America and Mid South Super Lawyers each year since 2006 in the field of Municipal Law, and he has been board certified in Civil Trial Practice since 1994 by the ABA-sanctioned National Board of Trial Advocacy. Ben has been nominated to serve on the ABA’s Board of Governors and anticipates beginning a three-year term on the BOG at the conclusion of the 2016 Annual Meeting.

Ben is married to the former Kathy Lee Orr, and they reside in Oxford, Mississippi, within shouting distance of Vaught-Hemingway Stadium at Ole Miss. They are the parents of two children, Clark, a geophysicist with Intera, Inc. of Austin, Texas, and Julie Faulkner Griffith (Goodman), Assistant Director of Development with Symphony Space in Manhattan.

About the Authors

A diverse, talented, and experienced group of authors representing the left, right, and middle of the political spectrum were asked to contribute chapters to this book. Each of them addressed at least one of the many challenges facing America’s electoral system and the voting practices administered for the most part on the local level in each of the 50 states.

The focus of the third edition of America Votes! Challenges to Election Law and Voting Rights (ABA 2016) is threefold: (1) the new challenges facing electoral administration and technology, (2) the challenges for voting rights, and (3) the challenges of one person, one vote in redistricting.

The challenges for electoral administration and technology are addressed by a team of six authors, beginning with Federal Election Commission (FEC) Chair Ann Ravel, who provides a current snapshot of the work and responsibilities of the FEC. Doug Chapin, director of the Program for Excellence in Election Administration, Humphrey School of Public Affairs, University of Minnesota, offers an informative perspective on the Election Advisory Commission’s responsibilities for enforcing or interpreting federal election law. Terry Ao Minnis, director of census and voting programs for Asian Americans Advancing Justice provides a timely overview of language assistance to voters. Veteran litigator Bob Heath provides a helpful analysis of using census data sources to prove citizenship in voting rights litigation. John (Jack) Hardin Young, current chair of the ABA Standing Committee on Election Law, and Rachel Provencher have collaborated on a chapter that addresses the administrative challenges for recounts, contests, and post-election audits.

The challenges for voting rights are covered by a diverse group of 11 authors, beginning with Professor Paul Gronke, political science professor at Reed College and Daniel B. German Endowed Visiting Professor at Appalachian State University, and Jacob Canter in a chapter on early voting. Professor Justin Levitt of the Loyola Law School offers a quick and dirty chapter on the new misreadings of the voting rights act. Paul Wiley, a recent graduate of Washington & Lee University School of Law, discusses section 3 bail-in, and Professor Lorraine Minnite, Department of Public Policy and Administration, Rutgers University, provides an interesting perspective on the voter fraud myth. The Brennan Center’s Nicole Austin-Hillery has a chapter on voter ID as suppression, with a somewhat different perspective on suppression litigation provided in a chapter by Tanya Clay House and Marcia Johnson-Blanco, co-director of the Voting Rights Project with the Lawyers’ Committee for Civil Rights Under Law. Tova Wang, Senior Democracy Fellow at Demos, has contributed a chapter in which she examines the impact of voter suppression tactics on participation and mobilization of marginalized voters. Nancy G. Abudu, legal director of the ACLU Foundation of Florida has written an informative chapter on immigration, voting rights, and electoral access. Roger Clegg, president and general counsel for the Center for Equal Opportunity, has a chapter on felons, fraud, redistricting—and race.

Challenges of one person, one vote in redistricting are covered by five authors, starting with Associate Professor Donald Campbell, Mississippi College School of Law, in a chapter on partisan politics, competitive districts, and the Voting Rights Act. Butler Snow attorneys Tommie Cardin and Parker Berry provide a rich chapter on finding middle ground for state legislative reapportionment, followed by a chapter in which New York attorney Vince Fontana and Mississippi attorney Ben Griffith provide a defense perspective on the nuts and bolts of section 2 vote dilution litigation.

Commissioner Ann M. Ravel joined the Federal Election Commission in October 2013 after her appointment by President Barack Obama and the unanimous consent of the Senate. She served as the commission’s chair for 2015 and as vice chair for 2014. Previously, Ms. Ravel served as chair of the California Fair Political Practices Commission (FPPC) from March 2011 to October 2013 where she oversaw the regulation of campaign finance, ethics, and conflicts of interest. During her tenure at the FPPC, Ms. Ravel was instrumental in the creation of the States’ Unified Network (SUN) Center, a web-based center for sharing information on campaign finance. Ms. Ravel also served as a deputy assistant attorney general at the United States Department of Justice from 2009 to 2011 and as Santa Clara County counsel from 1998 to 2009. Ms. Ravel received her BA from the University of California, Berkeley and her JD from the University of California, Hastings College of the Law.

Doug Chapin is the director of the Program for Excellence in Election Administration. Chapin came to the Humphrey School after 10 years at The Pew Charitable Trusts, where he served as director of Election Initiatives for the Pew Center on the States. Under his leadership, Pew’s elections team successfully lobbied for enactment of military and overseas voting reform in Congress and state legislatures; enlisted dozens of states and technology partners like Google, Microsoft, and Facebook to provide official voting information online and via mobile technology; and worked with election officials, academics, and technical experts to design and implement efforts to upgrade the nation’s voter registration systems. Prior to serving at Pew, Chapin was an attorney in private practice specializing in election and ethics law. He served as elections counsel to the Democrats on the U.S. Senate Rules Committee from 1997 to 2000, where he focused on federal election legislation and participated in the review of the disputed 1996 Senate election in Louisiana. He holds a law degree from Georgetown University, a master of public administration degree from Harvard’s John F. Kennedy School of Government, and an AB in politics from Princeton University.

Terry Ao Minnis is the director of the census and voting programs for Asian Americans Advancing Justice. Terry co-chairs the Leadership Conference on Civil and Human Rights’ Census Task Force and sat on the U.S Department of Commerce’s 2010 Census Advisory Committee from 2002 through 2011, when the committee’s charter ran out. She has published several articles, including When the Voting Rights Act Became Un-American: The Misguided Vilification of Section 203 (Alabama Law Review). Terry has been counsel on numerous amicus briefs filed before the Supreme Court, including Shelby County, Alabama v. Holder, Arizona v. The InterTribal Council of Arizona, Northwest Austin Municipal Utility District Number One v. Holder, and Crawford v. Marion County Election Board. She was also counsel on a joint amicus brief with MALDEF in Bartlett v. Strickland. She was one of the key leaders in campaigns on reauthorizing the Voting Rights Act in 2006 and Census 2010 and is actively engaged in addressing the Supreme Court’s decision in Shelby County v. Holder.

Terry holds a law degree, cum laude, from American University’s Washington College of Law and a bachelor’s degree in economics at from the University of Chicago.

C. Robert Heath, one of the founding partners of Bickerstaff Heath Delgado Acosta LLP—a 30-lawyer firm with offices in Austin, El Paso, Houston, and the Rio Grande Valley—has been involved in redistricting since 1971. He has represented hundreds of governmental entities in drawing districts and obtaining preclearance from the Department of Justice. In addition, he has represented many governments in significant federal voting rights litigation in Texas and in the District of Columbia district courts, in the Fifth Circuit, and in the U.S. Supreme Court. These cases include Chen v. City of Houston and Lepak v. City of Irving, both of which present the issue of whether noncitizens should be included in the apportionment base for one person, one vote purposes.

Rachel Provencher is a recent alumna of the Presidential Management Fellows Program in Washington, D.C. Through the fellowship, she completed a detail at the Federal Election Commission. Ms. Provencher’s experience at the Federal Election Commission included assignments within the Policy, Enforcement, and Administrative Law Divisions of the Office of General Counsel. While at the Federal Election Commission, Ms. Provencher drafted a proposed advisory opinion on behalf of the commissioners and responses to campaign finance complaints filed with the agency. Ms. Provencher currently works with elementary and secondary education issues at the United States Department of Education. She earned her JD from William & Mary Law School, where she was a member of the Election Law Society and wrote an independent paper on the intersection between lobbying law and campaign finance jurisprudence. Prior to law school, Ms. Provencher was a Teach For America corps member in Bronx, New York, and earned her MS from Fordham University and BA from the College of the Holy Cross, where she was Phi Beta Kappa.

John Jack Hardin Young is an adjunct professor of international and comparative election law at William & Mary Law School, a senior global election dispute resolution advisor, managing director of the Center the Mediation of Electoral Disputes, and senior counsel at SandlerReiff in Washington, D.C. He is also the chair of the American Bar Association’s Standing Committee on Election Law, editor and contributor to International Election Principles: Democracy and the Rule of Law (ABA Press 2008), and an author of Alternative Dispute Resolution Mechanisms (with David Kovick) in Guidelines for Understanding, Adjudicating, and Resolving Dispute in Elections (IFES 2011). He is currently the editor of International Election Remedies to be published in 2016. He is a former member of the American Bar Association Board of Governors, and chair of the ABA Section of Administrative Law and Regulatory Practice. He is a life fellow of the American Bar Foundation and a life member of the American Law Institute.

He received his law degrees from the University of Virginia (JD) and Oxford University (BCL).

Paul Gronke is the Daniel B. German Endowed Visiting Professor at Appalachian State University and professor of political science at Reed College. Dr. Gronke has published over 30 peer-reviewed articles on election reform, election administration, and voting behavior in elections. He has consulted with the federal Election Assistance Commission, state and local election officials, and nonprofit organizations regarding the impact of election laws and procedures on the efficiency and effectiveness of election conduct in the United States. In 2005, Gronke founded the Early Voting Information Center (http://earlyvoting.net) in order to help disseminate information, determine best practices, and conduct non-partisan research into the impact of early voting on American elections.

Jacob Canter is currently a first-year law student at the UC Berkeley School of Law and is a 2014 graduate of Reed College. Jacob was the research director for the Early Voting Information Center from May 2014–June 2015. He helped prepare EVIC’s report and testimony for the Presidential Commission on Election Administration.

Justin Levitt is a national expert in the law of democracy. He teaches at Loyola Law School in Los Angeles, and has been a visiting faculty member at the Yale Law School, the USC Gould School of Law, and Caltech. He has been invited to testify about election law matters before committees of the U.S. Senate, the U.S. Civil Rights Commission, state legislative bodies, and federal and state courts; he has also presented before the Mexican Electoral Tribunal and members of California’s inaugural Citizens Redistricting Commission. His scholarly research and shorter commentaries have been widely cited, including by the U.S. Supreme Court. Levitt has served several presidential campaigns, including as the 2008 National Voter Protection Council, helping to ensure that millions of eligible Americans could vote and be sure that it counted. He was also counsel at the country’s largest independent voter engagement operation, and at several civil rights and civil liberties organizations. Levitt has represented and advised officials of both major parties, and has represented individuals and organizations seeking to compel officials to comply with their legal obligations. Levitt served as a law clerk to the Honorable Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit, and holds law, master’s, and undergraduate degrees from Harvard University.

Paul M. Wiley is an attorney from Virginia and a magna cum laude graduate of the Washington & Lee University School of Law. He was the symposium editor for the Washington & Lee Law Review, and was recognized with the A.H. Macleod-Ross Malone Advocacy Award and Order of the Coif honors. He received his BA from the University of Virginia, where he majored in government and worked as an analyst for Sabato’s Crystal Ball. Born and raised in Charlottesville, Virginia, he now lives in Washington, D.C.

Lorraine C. Minnite’s research is concerned with issues of inequality, social and racial justice, political conflict, and institutional change. She is the author and co-author of two books on electoral rules and racial and class politics in the United States: The Myth of Voter Fraud, published by Cornell University Press in 2010, and Keeping Down the Black Vote: Race and the Demobilization of American Voters, published by The New Press in 2009 and co-authored with Frances Fox Piven and Margaret Groarke. An experienced survey researcher, Dr. Minnite has also published on various aspects of political participation, immigration, voting behavior, and urban politics. She has taught at New York University and Barnard College/Columbia University, and served as associate director of the Center for Urban Research and Policy at Columbia University and as research director for the voting rights and policy organization, Project Vote. Dr. Minnite has served as an expert witness on several voting rights cases, and consulted with various labor, advocacy, academic, and governmental organizations and political campaigns, which have relied on her skills as a political analyst and researcher and her expertise in public policy. She has been awarded grants by the Carnegie Corporation of New York, the Ford Foundation, the Russell Sage Foundation, the New York Foundation, the Columbia University Institute of Social and Economic Research and Policy, the Center for Urban Research at the CUNY Graduate Center, and the New York Latino Research and Resources Network at the University of Albany. Dr. Minnite holds a BA in history from Boston University, and a Master’s degree and a PhD in political science from the City University of New York.

Nicole Austin-Hillery is the first director and counsel of The Brennan Center’s Washington, D.C. office, which she opened in March 2008. In her role, Ms. Austin-Hillery has overseen the growth and development of the Brennan Center’s advocacy and policy development work in Washington. She is the organization’s chief liaison to Congress and the Obama administration. Her day-to-day work includes oversight of the Washington office operations and staff, serving as the chief advocate for the Brennan Center on a host of justice and democracy issues and coordinating coalition work with other civil rights, social justice, and democracy organizations in Washington. Priority issue areas of Ms. Austin-Hillery’s portfolio include voting rights, racial and criminal justice advocacy and reform, and indigent defense. She also supports work in the money and politics issue area on a limited basis. Ms. Austin-Hillery provides both strategic and advocacy counsel ranging from legislative analysis to policy development. She serves as a frequent media spokesperson, having appeared on MSNBC, CNN, CNBC, C-SPAN, NPR, and TV One and is a national presenter on criminal and racial justice and voting issues. Ms. Austin-Hillery has written opinion pieces for several publications including Roll Call, The Hill, The Root, CNN.Com and BillMoyers.Com and has been a contributing writer to several advocacy publications. She has also testified before legislative bodies and serves as a frequent speaker on a host of public interest issues. In addition to her work in the policy and advocacy arenas, Ms. Austin-Hillery has significant litigation experience, having practiced with the law firm of Mehri & Skalet, PLLC as part of the firm’s civil rights employment class action practice and as the George N. Lindsay Civil Rights Law Fellow at the national office of the Lawyers’ Committee for Civil Rights Under Law in Washington, D.C. where she focused on housing litigation and policy. She is a former Wasserstein Public Interest Fellow at Harvard Law School and currently serves on the Board of the Washington Bar Association, as an appointed member of the ABA Committee on Election Law, and as co-chair of the ABA Criminal Justice Section’s Racial, Ethnic Justice & Diversity Committee. She is a former member of the D.C. Bar Pro Bono Committee and is a past president of the Washington Council of Lawyers. Ms. Austin-Hillery is a graduate of the Howard University School of Law and Carnegie Mellon University.

Tanya Clay House recently accepted an appointment as the deputy assistant secretary for P–12 education in the Office of Planning, Evaluation and Policy Development (OPEPD). As the deputy assistant secretary, she makes recommendations for the Assistant Secretary of OPEPD and other senior Department officials on a host of policy initiatives as the leader of the P–12 team in OPEPD. In addition to the reauthorization of the Elementary and Secondary Education Act, and the flexibility waiver found in that legislation, Mrs. House oversees the development of policy in the P–12 budget and spending plan and is responsible for policy recommendations and decisions for major grant competitions including teacher-related programs, among other things. Additional policy initiatives covering P–12 education include promoting student learning among ELLs and students with disabilities, as well as native and immigrant youth.

Prior to this appointment, Mrs. House served as the director of the Public Policy Department at the Lawyers’ Committee for Civil Rights Under Law. She worked closely with all committee programs and projects focusing on core issues such as education, voting rights, employment discrimination, fair housing, judicial diversity affirmative action, criminal justice, immigration and other racial diversity issues. As part of the Committee’s focus on policing reform, Ms. House helped to manage and coordinate the Civil Rights Coalition on Police Reform. Further, as director, Mrs. House was the principal representative for the Lawyers’ Committee on Capitol Hill. In particular, Mrs. House was part of the Non-Governmental U.S. Delegation to Berlin for the Organization for Security and Cooperation in Europe’s Anti-Semitism Conference. Additionally, Mrs. House managed the Lawyers’ Committee’s communications with the White House and federal and state agencies, and was responsible for preparing testimony for Congressional Committee, state, and local hearings and panels. She also oversaw the Judicial Diversity Program of the Lawyers’ Committee.

Mrs. House formerly served as the public policy director at People For the American Way (PFAW). She also served as the policy liaison for the African American Ministers Leadership Council, a program of the PFAW Foundation, and was responsible for the development of numerous reports on education, voting rights, and other civil rights issues.

In 2000, Mrs. House began her political career as legislative counsel for United States Representative Sheila Jackson Lee (D-TX), where she staffed the Congresswoman for the full Judiciary Committee and the Subcommittee on Crime. She also acted as the Congresswoman’s lead staff counsel for the Congressional Children’s Caucus, Women’s Caucus, and the Democratic National Caucus Children’s Task Force. From there, she moved to the Senate to work for United States Senator Barbara Boxer (D-CA) focusing on civil rights and social policy issues. Before working on the Hill and before law school, she worked for the Kentucky Department of Education, focusing on the KY Education Reform Act.

Mrs. House was selected as a 2010 NGen (Next Generation) Fellow with the Independent Sector Foundation. The American Express NGen Fellows Program honors 12 under-40 leaders across the country and helps to build the next generation of nonprofit and philanthropic leaders. She was also selected by the Root.com as one of the top 100 African Americans to watch for 2010 and was awarded the 2003 Congressional Black Caucus Chair’s Award for her dedication, leadership, and commitment in advancing the cause of civil and human rights for all Americans.

Mrs. House is a member of the Executive Committee and Board of Directors of the National Bar Association. She is also the chair of the Civil Rights Law Section. Mrs. House has testified before the U.S. Senate Judiciary Committee, the Rules and Administration Committee of the U.S. Senate, the Committee on House Administration of the U.S. House of Representatives, and the Election Assistance Commission (EAC). Mrs. House has been a guest speaker for numerous panels and national conferences and has been interviewed and quoted by national television, print and radio media, including the NBC Nightly News, Associated Press, C-SPAN, Washington Post, LA Times, New York Times, USA Today, BET news, the Detroit News, National Public Radio, Roll Call, Regional Network News, and others.

Tanya Clay House, formerly of Louisville, Kentucky, earned her BA cum laude in political science from the University of Michigan, where she excelled as a varsity track athlete. She earned her JD from the University of Texas School of Law in 1999, where she was executive editor of the Texas Journal of Women and the Law and attorney general for the Rocky Mountain Black Law Students Association. Tanya resides outside of Washington, D.C., in Springfield, VA, with her husband, Damon, and their young sons Dillon and Tyler.

Marcia Johnson-Blanco is the co-director of the Lawyers’ Committee’s Voting Rights Project. She manages the project’s programmatic and advocacy portfolios, which include leading Election Protection, the nation’s largest non-partisan voter protection program, overseeing the work of the National Commission on Voting Rights, promoting election reform, ensuring minority participation in the redistricting process, and ensuring that those with felony convictions regain their right to vote. Marcia started at the Lawyers’ Committee as a staff attorney in 2004 working on the first Election Protection program during a presidential election. In 2005, she served as the deputy director of the National Commission on the Voting Rights Act which was organized to review the record of discrimination in voting from 1982–2005. The findings of the Commission were a significant part of the record considered by Congress in the 2006 reauthorization of the expiring provisions of the Voting Rights Act. Marcia also served as a member of the litigation team defending the 2007 challenge to the constitutionality of the Act.

Marcia is a recognized leader in voting rights who has participated in countless voting rights discussions at conferences and in the media. She also coordinates the Lawyers’ Committee’s international human rights initiatives. She has worked on shadow reports discussing U.S. compliance with two important treaties: the International Convention on the Elimination on all forms of Racial Discrimination (ICERD) and the International Covenant on Civil and Political Rights (ICCPR) and has presented before the reviewing bodies during treaty reviews in Geneva Switzerland. Additionally, she serves as the co-chair of the ICERD taskforce of the U.S. Human Rights Network. Marcia is very proud that her essay on voting rights is part of an exhibit at the National Center for Civil and Human Rights in Atlanta, Georgia. Marcia has taught as an adjunct professor at Georgetown University Law Center. She received her JD from Villanova University School of Law and a Bachelor of Science degree in linguistics from Georgetown University.

Tova Wang is director of Democracy Programs for the Communications Workers of America and Senior Democracy Fellow at Demos. She has 20 years of experience working on improving democracy. Tova has focused on issues related to greater political inclusion in the United States, including major studies on increasing voter participation rates among low income people, communities of color, naturalized immigrants, women, and Native Americans. Her critically acclaimed book, The Politics of Voter Suppression: Defending and Expanding Americans’ Right to Vote, was published in 2012 by Cornell University Press. She also consults and conducts legal research and analysis on voting rights and election reform for international organizations in countries around the world. Her commentary on voting and participation has appeared in numerous print media outlets, including the New York Times, the Washington Post, The Hill, and Politico, and she has appeared on numerous national television and radio news shows. She graduated magna cum laude from Barnard College and has a JD from NYU School of Law.

Nancy Abudu is the legal director for the ACLU of Florida and litigates a variety of civil rights and civil liberties issues in federal and state courts. She first started with the ACLU’s National Voting Rights Project in Atlanta where she challenged state laws involving felon disfranchisement, proof of citizenship, and voter photo ID requirements; and she sought to enforce legal protections for voters under the Voting Rights Act, the National Voter Registration Act, and other federal laws. Since joining the Florida affiliate, her practice areas have grown to include criminal justice reform, free speech, reproductive rights, immigrants’ rights, LGBT rights, and a host of other issues. Before joining the ACLU, Nancy was a staff attorney with the Eleventh Circuit Court of Appeals in Atlanta and an associate with Skadden, Arps, Slate, Meagher & Flom LLP in New York. She has represented victims of domestic violence on behalf of the Legal Aid Society of New York in their East Harlem office, and has presented testimony before the United Nations on environmental justice and other human rights issues. She was also the Chair of the Georgia Chapter of the National Lawyers Guild, co-chair of the Political Action Committee for the Georgia Association of Black Women Attorneys, and a state legislative coordinator for Amnesty International USA. She currently serves on the ABA’s Advisory Committee to the Standing Committee on Election Law, and is a Senior Fellow with the Environmental Leadership Program based in Washington, D.C. She received her BA from Columbia University and her JD from Tulane Law School where she won the Most Outstanding Managing Editor Award for her work on the Tulane Environmental Law Journal. She is admitted to practice in Florida, Georgia, New York, the U.S. Supreme Court, and several other federal courts.

Roger Clegg is president and general counsel for the Center for Equal Opportunity. Mr. Clegg writes, speaks, and conducts research on legal issues raised by civil rights laws. The Center for Equal Opportunity is a conservative research and educational organization based in Falls Church, Virginia, that specializes in civil rights, immigration, and bilingual education issues. Mr. Clegg also is a contributing editor at National Review Online, and writes frequently for it and USA Today, The Wall Street Journal, The Washington Times, The Chronicle of Higher Education, and other popular periodicals and law journals. From 1982 to 1993, Mr. Clegg held a number of positions at the U.S. Department of Justice, including assistant to the solicitor general, where he argued three cases before the United States Supreme Court, and the number two official in the Civil Rights Division and Environment Division. From 1993 to 1997, Mr. Clegg was vice president and general counsel of the National Legal Center for the Public Interest, where he wrote and edited a variety of publications on legal issues of interest to business. He is a graduate of Rice University and Yale Law School. Mr. Clegg and his wife Joann live in Fairfax, Virginia.

Donald E. Campbell is an associate professor of law at Mississippi College School of Law where he teaches ethics and professional responsibility, property, wills and estates, environmental law, and construction law. He is also a PhD candidate in the Political Science Department at the University of Florida, focusing on the federal judicial confirmation process. He received his undergraduate degree from the University of Southern Mississippi, and his JD summa cum laude from Mississippi College School of Law. Prior to joining the MC Law faculty, Professor Campbell served as a clerk for the Honorable Leslie Southwick on the United States Court of Appeals for the Fifth Circuit. He has authored a number of articles including "Partisanship, Politics, and the Voting Rights Act: The Curious Case of U.S. v. Ike Brown," published in the Harvard Journal of Race and Ethnic Justice. Professor Campbell is co-author (with Jeffrey Jackson) of two treatises on legal and judicial ethics in Mississippi entitled Professional Responsibility for Mississippi Lawyers and Commentary on Judicial Ethics in Mississippi through MLI Press. He currently serves on the Ethics Committee of the Mississippi Bar. He has also served as the reporter for the Mississippi Code of Judicial Conduct Study Committee.

Tommie S. Cardin is a lawyer with the firm Butler Snow LLP where he serves as Practice Group Leader of the Regulatory and Government Relations Practice Group. He concentrates his practice in the areas of administrative, environmental and governmental law, including elections and voting rights issues. Tommie has served as lead counsel for the Mississippi Standing Joint Committee on Legislative Reapportionment for the past three (3) rounds of legislative redistricting, dating back to 2001. The Standing Joint Committee is the legislative committee responsible for redistricting both state and legislative districts and congressional districts. Tommie received his BA, magna cum laude, from Mississippi State University in 1983. He received his JD from the University of Mississippi in 1986 and then served as a law clerk at the Mississippi Supreme Court from 1986–87. He has earned the distinctions of The Best Lawyers in America Lawyer of the Year for Government Relations Practice, AV-Rated by Martindale-Hubbell, and Mid-South Super Lawyers for Civil Rights/First Amendment; he has also served on the Board of Directors for the Mississippi School Boards Association and served as an adjunct professor at Mississippi College School of Law. As a member of the Mississippi Bar, Tommie serves as a member of the Government Law Section. Tommie is a member of the State and Local Government Law of the American Bar Association and is a member of the Capital Area Bar Association as well as the International Municipal Lawyers Association and Mississippi Association of County Board Attorneys.

B. Parker Berry’s practice is focused on governmental litigation and administrative law. He is actively involved with the American Bar Association where he serves on a variety of committees. He graduated from Mississippi State University with a BBA in business administration, summa cum laude, and was on the 2009 President’s List, IIAM Scholarship Recipient 2007 and 2008, and member of the Order of Omega Honor Society. A graduate of the School of Law at the University of Mississippi, Parker earned a JD, magna cum laude, in 2012 and was associate articles editor of the Mississippi Law Journal, member of Phi Delta Phi Honor Society, and Mississippi Bar Health Law Scholarship Recipient.

Vincent R. Fontana is a principal in the Law Office of Vincent R. Fontana, P.C. He graduated from Fordham University Law School where he was a member of the law review. He is the author of several treatises, including a two-volume textbook on municipal law and practice, and a frequent lecturer on section 2 of the Voting Rights Act, section 1983, and employment law. He has published two law review articles on defending a section 2 Voting Rights Act case published by Stetson University Law School. Mr. Fontana has represented the cities of Pittsburgh, Pennsylvania; Ft. Lauderdale, Kissimmee, Leesburg, and Osceola County, Florida; Chattanooga, Tennessee; Tulsa, Oklahoma; New Rochelle, New York; and Watsonville, California in section 2 cases. He has also argued section 2 appeals before the Third, Ninth, and Eleventh Circuits.

Introduction

THURGOOD MARSHALL, JR.

Morgan, Lewis & Bockius LLP, Washington, D.C.

This third edition of America Votes! is a superb resource for anyone seeking information and guidance regarding election law and voting rights. It contains information that will inform individuals seeking a basic understanding of our electoral processes, and it offers valuable guidance to policymakers, election administrators, and legal practitioners alike. Readers will find useful background and historical context coupled with the current state of play, as well as a helpful sense of the questions that we will all face going forward.

This new edition brings together contributions from a multi-partisan array of seasoned election-law practitioners blended with observation and analysis by dispassionate expert observers. For those seeking to dig deeper, this volume is also filled with useful footnotes and valuable source material.

Part One details election administration processes and sets forth the opportunities and challenges that we face locally and nationally. It includes valuable contextual background and expert guidance for those interested in or engaged in the process at the local and federal levels. It also includes a listing of process challenges that have arisen in recent elections, potential solutions, and the opportunities and threats raised by technology. Building on that format and applying it to voting rights issues, Part Two offers a wealth of information, practical guidance, plus a framework that identifies the issues and arguments that are in play in this important and volatile field. Part Three offers similarly informed and thoughtful

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