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Volume 39, Number 1Editorial BoardChair Stephen J. WermielMember Wilson Adam SchooleyMember Penny WakefieldMember Kristen GallesMember Aram SchveyABA PublishingEditor Melissa LadwigArt Director Andrea SiegertSection of IndividualRights and ResponsibilitiesChair Stephen J. WermielChair-Elect Myles LynkVice-Chair Mark I. SchickmanSecretary Lauren Stiller RikleenFinance Officer Toby GraffSection Delegate Estelle H. RogersSection Delegate Walter WhiteImmediate Past Chair Kay H. HodgeSection Director Tanya N. TerrellAssociate Section DirectorPatrice PayneProject Director (AIDS) and Director ofthe ABA Center for Human RightsMichael L. PatesProject Director (Death PenaltyMoratorium) Sarah E. TurbervilleSection Administrator Jaime T. CampbellSection Office740 15th St., N.W.Washington, D.C. 20005tel: 202/662-1030, fax: 202/662-1032e-mail: irr@americanbar.orgwww.americanbar.org/groups/individual_rights.htmlCover Image iStockSection ofandIntroductionBy Estelle H. RogersThe right to vote is a central tenet of our democracy. Not surprisingly, ithas become a quintessential American “export” to Eastern European andMiddle Eastern countries that have been aspiring to democratic values sincethe early 1990s. Government and private assistance to fledgling democracies writingconstitutions and statutes to create the right to vote, and technical assistance tocountries striving to run free and fair elections, are now staples of our internationaldevelopment programs. Yet, despite our willingness to teach the skills of democracy,we still have a lot to learn.Quite by accident, I became a voting rights lawyer in the summer of 2004. It wassupposed to be a temporary project, helping to make sure that newly registered voters—ofwhich there were millions that year—actually made it onto the rolls. Butit turned out that there was a lot more to do, even after the election, and I’ve beenworking on voter registration, election administration, and voting rights issues eversince. Unfortunately, the “arc of history,” with regard to the right to vote, seems tobe bending backward. And I fear it will take a much more aware and engaged citizenry,as well as a lot of pro bono lawyers, to bend it toward justice again.The “Human Rights Hero” column, on the back page of this issue, tells thestory of the successive waves of citizens added to the voting rolls over our history.Like other rights, the right to vote was fought for and won by a series of popularmovements on behalf of groups that had originally been thought unworthy—racialminorities, women, young people—and their enfranchisement was memorializedin several amendments to our Constitution. But, sadly, the intentionally difficultconstitutional amendment process does not seem to be necessary to disenfranchisevoters, only to add them to the electoral mix.Since the 2010 elections, an astounding 180 laws restricting voting rights have beenproposed in legislatures in forty-one states. Of these, twenty-three such laws have passedto date in eighteen states. Of these, twelve regressive laws are currently in effect in eightstates. We expect several more to be added to that list. These laws include strict photoID requirements to vote; proof of citizenship to register or vote; rollbacks of early voting,absentee voting, or same-day registration; onerous restrictions on community registrationdrives; and laws making it more difficult or impossible for felons to regain theirvoting rights. The vehicles employed to restrict registration and voting are practicallylimitless, and their proponents are becoming ever more creative—a county in Nebraskahas proposed cutting its polling place locations by half, and this needs no legislative vote!Needless to say, this and many of the other laws we are encountering disproportionatelyconstrain the rights of low-income, minority, disabled, and elderly citizens.But there is some good news. At the outset, although the U.S. Constitutiongives states wide latitude to run elections, federal voting rights laws exercisemeaningful limits on state autonomy. Preeminent among the federal laws isthe Voting Rights Act of 1965, often called the “crown jewel” of the civil rightsmovement, particularly its preclearance provision in section 5, which requiressome jurisdictions to have prior approval before implementing voting changes.The preclearance process has been enacted as a backstop to a number of theegregious laws passed recently, including photo ID laws in Texas and SouthCarolina and registration drive restrictions, among others, in Florida.But there are two dark clouds looming over this silver lining: First, preclearanceis only necessary in limited jurisdictions (for example, only five counties ofthe sixty-seven in Florida); second, the preclearance provision of section 5 is itselfunder attack. Several constitutional challenges to preclearance, on the ground thatit is unnecessary and discriminatory in the present racial environment, are in thepipeline and wending their way to the Supreme Court. Though the D.C. Circuithas recently rejected this argument in Shelby County, Alabama v. Holder, votingrights experts see a reprise of this issue in the high court (which found it unnecessaryto address the constitutionality of section 5 in Northwest Austin MunicipalUtility District Number One v. Gonzales) as all but inevitable.continued on page 25Published in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Barriers to the Ballot BoxNew Restrictions Underscore the Needfor Voting Laws EnforcementBy Denise LiebermanToday, we are witnessing thegreatest assault on voting inover a century. A spate of newlegislation, executive orders, ballotinitiatives, and administrative practices“effectuate a trifecta of voter suppression,”making it harder to registerto vote, to cast a ballot, and to havea vote counted. Not since the post-Reconstruction era that heralded polltaxes and literacy tests has there beenso much government action conditioningaccess to vote—through new rulesrestricting voter registration, advancevoting, voter identification, purgepractices, and more. These new lawscould impede access for more than5 million eligible voters in 2012.While of interest due to theirpartisan motivations and potentialpolitical consequences, the impact ofthese measures extends beyond electoralpolitics to the heart of how wedefine democracy—with potentiallylong-lasting implications. The phenomenonunderscores a contentiousdebate—one that is playing out inlegal challenges to these measures—ofwhether voting is a right that cannotbe burdened absent rigorous scrutiny,or whether it is a privilege that canmore easily be conditioned. Thesedebates on how we condition votingreveal America’s distasteful schismsin privilege and power, race and class,and judgments about the worth of aperson’s citizenship and humanity.As a nation, we have long struggledwith the concept of electoraldemocracy. Though not specificallydelineated as a fundamentalright, there are more constitutionalamendments protecting the rightto vote than any other, guaranteeingthat the right to vote cannot beHundreds of voters wait to cast their ballots two hours afterthe polls were supposed to close on the campus of theUniversity of Miami in Coral Gables, Fla. This precinct wasequipped with only five voting machines.abridged on accountof race, sex, language,ethnicity, religion,residency, payment of apoll tax, or age. The SupremeCourt long agoexplained that voting is“regarded as a fundamentalpolitical right,because [it is] preservativeof all rights.” Anddespite the Court’s pronouncementsthat “[t]heright to vote freely forthe candidate of one’schoice is of the essenceof a democratic society,and any restrictions onthat right strike at theheart of representativegovernment,” and that“every voter is equal toevery other voter,” ourvoting processes havenever reflected the idealthat all citizens havean equal opportunityto cast a ballot. From our nation’sbeginnings, which limited voting toonly white male landowners, we havefought bloody—indeed deadly—battles to expand access, paving theway for significant court decisionsand landmark federal legislation likethe Voting Rights Act, and later theNational Voter Registration Act andthe Help America Vote Act.But legislative activity in thestates since the 2010 midterm electionsmarks a sharp departure fromthe trend of expanding access, withmore than 180 restrictive votingbills introduced in forty-one statessince last year. My organization,Advancement Project, has characterizedthis as “the most significantrollback of voting rights in a century.”Today, through mechanismsreminiscent of the Jim Crow measuresended by those landmark casesand statutes—and no less insidious—sometwo dozen new votinglaws in eighteen states (representingtwo-thirds of electoral votes neededto win the presidency) stand to makeit more difficult, if not impossible,for millions of voters to cast a ballot—disproportionatelyAfricanAmericans and Latinos, young voters,low-wage earners, people withdisabilities, and senior citizens. Theresult is not only legal inequality,but a lingering social malaise thatstrikes at our identity. “Voting isAssociated Press, APPublished in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion 2thereof may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

about basic human dignity,” saysPastor Kenneth Wheeler of CrossLutheran Church in Milwaukee, oneof my clients in a legal challenge toWisconsin’s new photo ID law. “Theright to vote is at the core of ourcitizenship. . . . We’re already facingextreme economic constraints,debilitating poverty, and social exclusion.This law only exacerbatesthe level of exclusion we face. Simplyput, it devastates us. . . . Voting givespeople hope. We have to underscorethe right to vote as a sacred right.”The Changing Face of theAmerican ElectorateAccording to Pew Research Center,African-American voter turnoutrose to 65 percent in 2008, nearlymatching white turnout (66 percent)for the first time in our nation’s history.Youth voting was the highest ina generation. New voters in the lowestincome and education bracketsdoubled from 2004 to 2008. Latinoturnout rose to 50 percent—and isonly likely to increase. In key battlegroundstates, the number of eligiblebut unregistered Latino voters is inthe hundreds of thousands or evenmillions, with another 8.1 millionlegal permanent residents who couldbe eligible for citizenship and couldvote by this fall. In some states, likeCalifornia, Texas, Florida, Arizona,Colorado, Georgia, New Mexico,and Nevada, the number of potentialsuch voters is greater than the marginof victory.New Restrictions on VotingThe record turnout of black andbrown voters in 2008, along withcensus data showing the populationof nonwhites rising fast, offers aglimmer of hope that the interests ofpeople of color could more readilybe heard in a nation fraught with ahistory of silencing their voices. Thishas not escaped those who stand tobenefit from a less robust electorate.Conservatives who won majoritiesin statehouses across the country in2010 have backed the coordinatedmeasures, calling them necessary toprevent voter fraud. But a federalpanel last year found little to no electionfraud in the United States thatcould be addressed by these laws,and this is backed up by every academicstudy on the subject.Proponents discount that thegroups most likely to be harmedby these requirements—blacks,Latinos, the poor, and college students—aregroups that tend to voteagainst their interests. Worse, proponentshave defended these lawswith many of the same argumentsused to defend the voter suppressionlaws of earlier generations, by suggesting,for example, that the raciallydisproportionate impacts are notabout race, but a result of “socioeconomicstatus,” or due to “differencesin motivation, or lack thereof,” toget needed documentation, andthat the burdens are “mere inconveniences”—argumentsthat have beenoffered in defense of our lawsuitchallenging Wisconsin’s photo IDlaw. During debates on a photo IDproposal in Missouri this year, onesenator told a voter who recounted atwo-day, fourteen-hour ordeal to geta state ID, “If it’s that hard for youto get an ID, I question whether youshould be voting at all.”These new barriers stand to systematicallydisenfranchise voters and preventrealization of a more just democracythat reflects the nation as a whole.These include the following issues.Photo ID RequirementsVoter ID restrictions have been introducedin thirty-eight states andpassed in nine since 2011. Whilethirty states require voters to showsome form of ID, these laws limit theforms of acceptable ID voters mustshow at the polls to a nonexpiredgovernment-issued photo ID. Approximately11 percent of votingeligiblecitizens—about 21 millionAmericans—lack a nonexpired stateissuedphoto ID, disproportionatelyAfrican Americans, Latinos, youngvoters, the elderly, and people withdisabilities, who are up to twice aslikely to lack an ID. In fact, one infour African Americans nationwidelacks a state-issued photo ID.A University of Wisconsin studyfound that half of that state’s AfricanAmericans and Latinos lackeda Wisconsin driver’s license, themost common form of acceptableID, and that among young voters, awhopping 78 percent of eighteen- totwenty-four-year-olds lack one. Therate of seniors without IDs tops 20percent statewide, especially in minoritypopulations.Bettye Jones, a plaintiff in ourlitigation challenging Wisconsin’sphoto ID law (described by oneWisconsin judge as “the single mostrestrictive voter eligibility law in theUnited States”), reflects a circumstancecommon to many AfricanAmericans of her generation—bornin the South during segregation, shewas born at home and never issuedthe formal birth certificate that isnow necessary to procure a stateissuedphoto ID to vote. In courtrecords, she describes her expensive,multimonth effort to get the neededdocuments as “harrowing.”In South Carolina, where theJustice Department (DOJ) deniedpreclearance to the state’s new photoID law under section 5 of the VotingRights Act (noting that votersof color were 20 percent more likelyto lack a state-issued ID comparedto whites and were thus “disproportionatelyrepresented, to a significantdegree,” among those who stoodto be “rendered ineligible” to voteunder the law), the local NationalAssociation for the Advancementof Colored People bluntly called thelaw “Jim Crow Jr.”At a forum on voter ID laws inwhich I participated in St. Louis,the Rev. Al Sharpton, a vocal opponentof photo ID laws, spokeof the similarities to old Jim Crowlaws: Now, he said, “We’re fighting‘James S. Crow Jr. Esquire.’ He talksin a more refined way . . . but theresult is the same.” U.S. RepresentativeEmanuel Cleaver echoed thatsentiment, noting that when he wasyoung, “the poll tax was $3.50” toPublished in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

discourage blacks from voting. Now,he said, it’s been replaced by a $22fee for the birth certificate needed toget a government-issued photo ID.Worse, the laws don’t fix a problem;in-person voter impersonation, theonly malady addressed by a photo IDrequirement, is exceedingly rare. Onestudy found that such a requirementwould not prevent one fraudulentvote for every 1,000 eligible votersdisenfranchised.Limits on Early VotingFlorida, Georgia, Ohio, Tennessee,West Virginia, and Wisconsin passedlaws last year reducing advance voting.In 2008, 30 percent of voters inthese states cast early ballots, with AfricanAmericans twice as likely to doso than whites. In Florida, 53 percentof African Americans cast early ballotsin 2008 compared to 27 percentof white voters. In Florida, MonroeCounty Elections Supervisor HarrySawyer Jr. says, “Limiting early votingoptions is a dangerous path whichwill only make it more difficult tovote,” not only eliminating opportunitiesto vote before election day,but increasing lines and wait times onelection day to accommodate voterswho would have voted early.Voter Registration RestrictionsNew voter registration requirementshave halted voter registration drivesin Texas and Florida. Florida’s law,recently enjoined by DOJ, requiresregistration forms to be submittedwithin forty-eight hours, requirementsthat State Senator ArtheniaJoyner believes “will cripple voterregistration efforts.” African Americansand Latinos are more thantwice as likely as whites to registerthrough a voter registration drive. In2008, some 176,000 voters in Floridaand 26,000 voters in Texas registeredthis way. This year, African-Americanand Hispanic voter registrationhas declined 10 percent in Florida,according to the Washington Post,with 81,000 fewer people registeringto vote compared to the same periodin 2008, according to The New YorkTimes. We remain a long way fromfull participation; according to theVoter Participation Center, morethan 35 percent of all eligible Americans—over73 million citizens—arenot registered to vote, with votersof color, young voters, and womenmaking up the bulk of this group.Proof of CitizenshipSeveral states passed laws requiringdocumentary proof of citizenship toregister to vote. Tennessee’s law requiresproof of citizenship only fromvoters the coordinator of electionsbelieves to be noncitizens, openingthe door to the kind of discretionthat led to the racially discriminatoryimpact of literacy and “understanding”tests of the Jim Crow era,when passing the test was left to thediscretion of whoever administeredit. A challenge to Arizona’s proof ofcitizenship law is now awaiting reviewbefore the U.S. Supreme Court.State records show that between2005 and 2007, about 31,000 peoplein Arizona had their registrationforms rejected because they did notprovide adequate documentation.Rights RestorationExecutive orders, such as those signedlast year by governors in Florida andIowa, revoked existing policies givingpersons with felony convictions theability to regain their right to vote andmake it harder for people with pastcriminal records to restore their rightsafter they have paid their debt to society.Florida is one of three states thatstrip those with past felony convictionsof their voting rights for life. Thisban dates back to the Reconstructionperiod and historically was targetedat crimes thought to be committedby African Americans. Today, nearlyone in four African-American men inFlorida cannot vote because of thissystem. The only way to restore one’scivil rights in Florida is through clemencyfrom the governor, a burdensomeand arbitrary process. The state’s newrules have disenfranchised 100,000ex-felons in Florida who were eligiblebefore the change to have their rightsrestored and vote in 2012.Voter Rolls PurgesThe newest tactic in the voter suppressionplaybook includes effortsto purge purported noncitizens fromthe voter rolls using flawed lists bymatching voter rolls against motorvehicle lists, even though citizenshipdocumentation is not required to geta driver’s license. In Florida, wherethe list has been found to have a 78percent error rate, scores of eligiblecitizens have been targeted to havetheir names removed from the rollsif they don’t take affirmative steps toprove their citizenship. Eighty-sevenpercent of those on Florida’s purgelist are minorities—and a majorityare Hispanic.The DOJ in June halted the program,saying that the state had violatedsection 5 of the Voting RightsAct and the National Voter RegistrationAct (NVRA). Many countiesstopped the purge process amidconcerns about the inaccuracy of thelists, which initially contained morethan 180,000 potential noncitizensto be purged. As it became clear thateligible citizens were included oneven a smaller list of 2,700 targetedby the state, lawsuits were filed.My organization, AdvancementProject, along with several partners,brought suit alleging that the purgepractices violate the NVRA andsection 2 of the Voting Rights Act,which prohibits voting practices thatresult in minority voters having “lessopportunity than other members ofthe electorate to participate in thepolitical process.” Moreover, thepractice has a chilling effect on eligiblevoters. “People are in fear,” LidaRodriguez-Taseff, a Miami lawyerworking with my organization onthe legal challenge, told the MiamiHerald. “This is complicated andthreatening.” This is not Florida’sfirst problematic voter purge. Backin 2000, some 12,000 voters—farmore than the 537-vote margin ofvictory in the presidential election—were wrongly identified as convictedfelons and purged from the rolls.The list was disproportionatelymade up of racial minorities.Published in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Laws Make Their Way to the CourtsThe new laws are now making theirway to the courts, where some facescrutiny under section 5 of the VotingRights Act, which applies tojurisdictions (mostly sixteen states inthe South) with a history of discriminatoryvoting practices and requirespreclearance by the DOJ or a U.S.district court before they can go intoeffect. The state must show that thelaw will not have a “retrogressive”or discriminatory effect compared toexisting law. The DOJ, in its first rejectionof such a law since 1994, objectedto both South Carolina’s andTexas’s new photo ID laws, finding“significant racial disparities.” InSouth Carolina, they found thatAfrican Americans were 20 percentmore likely to lack an ID; in Texas,the DOJ found that “Hispanic registeredvoters are more than twiceas likely as non-Hispanic registeredvoters to lack such identification.”Both South Carolina and Texas havefiled lawsuits seeking clearance oftheir photo ID laws, and in both, thefuture of this section of the VotingRights Act is at stake.The laws are also being challengedunder section 2 of the VotingRights Act, which prohibits the useof any electoral practice or procedurethat results in the “denial or abridgementof the right of any citizen of theUnited States to vote on account ofrace or color.” Vote diminution occurswhen a group has “less opportunitythan other members of the electorateto participate in the politicalprocess,” if, “on the basis of objectivefactors,” it results in minority votershaving “unequal access to the electoralprocess.” In our lawsuit challengingWisconsin’s photo ID lawunder this provision, we have arguedthat the law “in its operation andresults is functionally indistinguishablefrom the laws employed duringthe Jim Crow era to suppress theAfrican-American vote,” by imposing“unnecessarily difficult” requirementsand “procedural hurdles” thatturn the voting process into a “test ofskill” and the “engine of discrimination,”with the predictable result ofsuppressing the minority vote.These cases and others will test thecontinued viability of the Voting RightsAct. Section 5 was reauthorized (withbipartisan support) in 2006 but is nowsubject to legal challenges that will likelybe resolved by the Supreme Court todetermine whether we have reached alevel of equality rendering this federaloversight unconstitutional. The lasttwo years have seen nine challenges tothe constitutionality of this provision(compared to just eight challenges totalin the law’s first forty five years).The laws are also facing scrutinyunder the Fourteenth Amendment,highlighting a contentious debate onthe nature of the right to vote. Thelegal standard is a confusing hybridbalancing test, not the strict scrutinystandard applicable to infringementson fundamental rights (requiring thestate to show that a law is narrowlytailored to a compelling governmentinterest). Instead, under theless strict “flexible” balancing testused in Crawford v. Marion CountyElection Board, the Supreme Courtupheld Indiana’s photo ID law, findingthat the “limited burden on voters’rights” was outweighed by the“precise interests put forward by theState as justifications for the burdenimposed by its rule.”There was less evidence of theburdens on voters in Indiana than isbeing revealed in the newest cases,and Indiana’s law is less restrictivethan the photo ID laws passedin the last year. But had the Courtbeen applying a stricter standard, asdid a state court in Missouri (whichspecifically defines the right to voteas “fundamental” under its constitution),the result would likely havebeen different. The Missouri SupremeCourt, applying strict scrutiny, foundthat Missouri’s photo ID law wasn’tnarrowly tailored to a compellinggovernment interest and that the statethus had not justified the substantialimpairment of the right to vote thatthe law would create. We are makinga similar argument now in a lawsuitchallenging Pennsylvania’s photo IDlaw under its constitutional votingprovisions. After the Missouri ruling,legislators sought to amend the constitutionto carve an exception to theright to vote to allow for photo IDs;the ballot proposal recently failed inthe courts as well. In Minnesota, afterGov. Mark Dayton vetoed a photoID bill passed there last year, legislatorsalso passed a constitutionalballot initiative, which is now beingchallenged in court.The hybrid balancing test used inCrawford leads to arbitrary results.The government should have to demonstratethat it has a compelling justificationbefore it can enact policiesmaking it harder to vote and shouldhave to show that the mechanismwill actually advance that goal. Butthere is no affirmative right to votethat would require this. The UnitedStates is one of only eleven of the 119democratic countries in the worldthat do not explicitly provide theright to vote in their Constitutions.Even the Afghan and Interim Iraqiconstitutions guarantee the right tovote. The resulting patchwork ofstate and local rules gets arbitrarilyapplied, which not only has politicalconsequences but impacts the socialfabric of our nation. These disparitiesare a major obstacle to eliminatingstructural disenfranchisement.Our legacy of voting in this countryis not a proud one, and while thelast century has seen a push towardexpansion of the franchise, thesenew laws stand to turn back theclock. History tells us the dangersof this trend. The decade followingthe new voting measures of the post-Reconstruction era saw dramaticreductions of previously eligiblevoters. For example, Louisiana hadover 130,000 African Americans registeredto vote in 1896. It enshrinednew voting amendments in itsconstitution in 1898 and by 1900,fewer than 5,000 African Americanswere registered to vote. By 1910,only 730 remained on the rolls. Thecontinued on page 14Published in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion thereof 5 may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

What Is Next for Section 5 ofthe Voting Rights Act?By Robert A. Kengle and Marcia Johnson-BlancoThe Amici States urge this Court to uphold the constitutionality of the2006 reauthorization of the Voting Rights Act. Any assertion that Section5 constitutes an undue intrusion on state sovereignty does not withstandscrutiny. Section 5 does not place an onerous burden on States.States have been able to comply with Section 5 without undue costs orexpense. More importantly, Section 5 has produced substantial benefitswithin the Amici States and our Nation as a whole.Brief for the State of Arizona and five other states as amici curiae,March 2009There is no justifiable reason for infringing on Arizona’s sovereignty andimposing the extreme burden of preclearance procedures on Arizona whenArizona does not engage in discriminatory practices against Hispanic voters.First Amended Complaint for Declaratory and Injunctive Relief,State of Arizona v. Eric Holder, September 2011LBJ Library photo by Robert KnudsenAs the Supreme Court’s newterm takes shape, severalpending cases will providethe Court with an opportunity torule on the constitutionality ofCongress’s 2006 reauthorization ofsection 5 of the Voting Rights Act(VRA) of 1965, 42 U.S.C. 1973c.If and when the Court reaches thatconstitutional question, the decisionwill write a new chapter in the historyof our nation’s effort to overcomeracial voting discrimination and toenforce the constitutional protectionsfor which many risked andgave their lives.Section 5 frequently is called oneof the most effective civil rights lawsever passed by Congress, and it hasbeen crucial to the historic politicalempowerment of minority voters inthe South and Southwest. Since it wasenacted in 1965, section 5 has led tothousands of racially discriminatoryvoting changes being blocked beforethey could be put into practice. Theopening quotations, from duelingfederal court pleadings filed by theState of Arizona, are examples ofhow section 5 has been cast as heroand villain in the unprecedented numberof constitutional challengesthat have been launchedagainst section 5 since its 2006reauthorization. Why now? What isat stake?The answer begins with the factthat section 5 operates differentlythan traditional anti-discriminationlitigation under the Fourteenth orFifteenth Amendment, or undersection 2 of the VRA, in which theplaintiff bears the burden of proofand the jurisdiction is free to use thechallenged procedure unless anduntil it is halted by court order. Insuch cases, it may take years of complexand expensive litigation beforethe plaintiff obtains relief.Section 5 requires that all changesin practices and procedures affectingvoting in certain “covered” jurisdictionsundergo federal review priorto their implementation. The federalreview occurs before a three-judgepanel in the U.S. District Court forthe District of Columbia or, alternatively,via an administrative submissionto the U.S. attorney general. Thedistrict court or the DOJ must deny“preclearance” if the covered jurisdictionfails to show that change in thePresident Lyndon B. Johnson signs the Voting RightsAct on August 6, 1965.existing practice lacks a discriminatorypurpose and effect. A jurisdictionis always free to seek preclearancefrom the district court regardless ofwhether the DOJ has denied preclearanceor even reviewed the changeat all. However, the jurisdiction issubject to what amounts to an automaticinjunction if it attempts to use avoting change without preclearance.Thus, the latitude generally given tostates to establish their own votingpractices unless a violation of federallaw has been proven is diminishedwhere section 5 coverage is in place,leading to what the Supreme Courthas called the “substantial federalismcosts” of section 5.The covered jurisdictions includeall of Alabama, Alaska, Arizona,Georgia, Louisiana, Mississippi,South Carolina, Texas, and Virginia;California, Florida, North Carolina,and New York have substantial populationscovered in multiple counties;and Michigan, New Hampshire,and South Dakota each has relativelysmall populations covered.Published in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion 6thereof may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Noncovered jurisdictions found byfederal courts to have engaged inunconstitutional racial discriminationmay be “bailed in” under section 3(c)of the VRA; covered jurisdictionsthat satisfy the standards in section4(a) of the VRA may be “bailed out”by federal court order.Thousands of voting changes aresubmitted for preclearance each yearand the vast majority of changeshave always been precleared. Althoughthere were hundreds of objectionsafter 1982, in recent yearsthe number of objections has beenlow by historical standards—viewedby some as evidence that jurisdictionsare effectively deterred fromadopting discriminatory votingchanges, and by others as proof ofour arrival at a “post-racial society.”Why Section 5?In March 1965, the nearly hundredyeareffort by Southern states toevade and undermine the post–CivilWar enfranchisement of racial minoritieswas being challenged asnever before, and the nation watchedin horror as African-Americanprotesters were set upon by statetroopers and brutally beaten as theyattempted to begin a march fromSelma to Montgomery, Alabama,to protest the denial of their votingrights. President Lyndon Johnsonwent before the nation and, afternoting that “[e]very device of whichhuman ingenuity is capable has beenused to deny” the right to vote forAfrican Americans, declared thathe would send a law to Congresswith the goal of eliminating barriersto the vote. In August of that year,after a vigorous debate in Congress,he signed into law the Voting RightsAct of 1965.The new section 5 preclearanceprocedure received less attention in1965 than the suspension of “testsand devices” (such as literacy tests)within the covered jurisdictions, andthe provisions for federal examinersto directly conduct voter registrationand bypass recalcitrant local officials.Nonetheless, section 5 was not wellreceivedby the newly covered jurisdictions.Section 5 faced an immediatefacial challenge in South Carolinav. Katzenbach (383 U.S. 301 (1966)), alandmark case invoking the SupremeCourt’s original jurisdiction, in whichthe Supreme Court rejected a federalism-basedconstitutional challenge toseveral portions of the recently enactedlaw, including section 5. The Courtfound that the preclearance remedywas not an undue intrusion on federalismprinciples, inasmuch as theFifteenth Amendment explicitly gaveCongress enforcement powers againstthe states to prevent racial voting discrimination.The Katzenbach Courtupheld this “uncommon exercise ofcongressional power” as rational andappropriate, noting that some states“had resorted to the extraordinarystratagem of contriving new rules ofvarious kinds for the sole purpose ofperpetuating voting discriminationin the face of adverse federal courtdecrees.” The Court also upheld thesection 4(b) coverage formula, findingthat it rationally targeted stateswith histories of voting discrimination,and that its provisions to addand remove covered jurisdictions,along with its sunset requirement, addressedconcerns about overbreadthand/or underbreadth.Section 5 originally was set toexpire in five years. However, becauseof persistent discriminationin voting, including the adoption ofat-large elections, gerrymanderedelection districts, and other tacticsdesigned to submerge and wastenewly enfranchised minority votes,Congress decided that it was necessaryto reauthorize section 5 in 1970for five years, and again in 1975 forseven years. The 1975 reauthorizationadded provisions prohibitinglanguage-based discriminationagainst citizens of three racial andethnic groups who had suffered a historyof official voting discrimination(Hispanics, Asian Americans, andNative Americans). The SupremeCourt reaffirmed the constitutionalityof Congress’s 1975 reauthorizationof section 5 in City of Rome v.United States (446 U.S. 156 (1980)).Congress reauthorized section 5 in1982 for twenty-five years; most attentionand debate in 1982 actuallyconcerned the addition of a “results”standard to section 2 of the VRA,which is nationwide in scope anddoes not expire. The Supreme Courtreaffirmed the constitutionality ofCongress’s 1982 reauthorization withonly a brief discussion in Lopez v.Monterey County (519 U.S. 9 (1996)).Why Did Congress Need toReauthorize Section 5 in2006?As the expiration of section 5 approached,the civil rights communitywas concerned that any reauthorizationwould be confronted by constitutionalchallenges, making it criticalfor Congress to act on the basis ofa thoroughly documented record.In previous reauthorizations, theDOJ and the U.S. Commission onCivil Rights had assisted in buildingthe record, but this appeared to beunlikely to happen again. Steppinginto the breach, the Lawyers’ Committeefor Civil Rights Under Lawand other members of the civil rightscommunity organized the NationalCommission on the Voting RightsAct (NCVRA). The eight-memberbipartisan Commission, whichconsisted of government and policyofficials, academics, and civil rightpractitioners, documented votingdiscrimination following the 1982reauthorization.Over seven months of ten hearingsconducted across the country,the NCVRA heard from over 100witnesses consisting of voting rightspractitioners, community activists,academics, and politicians and developeda record showing widespreadand persistent voting discriminationin the covered jurisdictions. In February2006, the NCVRA issued a reportauthored by Commission memberand prominent social scientist Dr.Chandler Davidson, concluding that“the evidence presented at the hearingsstrongly suggests that the twomajor problems which have been thePublished in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion thereof 7 may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

focus of the Act—restricted ballot accessand minority vote dilution—continuein twenty-first century America.”In October 2005, at the timethe NCVRA was concluding itshearings, the then-chair of theCommittee on the Judiciary of theHouse of Representatives, F. JamesSensenbrenner of Wisconsin, begancongressional hearings to examinethe impact of the temporaryprovisions of the VRA and to considerwhether they were still needed.Sensenbrenner had worked on thereauthorization of section 5 in 1982and wanted to continue that legacyby leading the effort in 2006. In February2006, Sensenbrenner formallyrequested the NCVRA report andits supporting documents, and theCommission’s work became part ofthe official record. The civil rightscommunity submitted extensive additionalstate-specific reports on therecord of compliance of most of thecovered jurisdictions, including allof the fully covered states. Overall,the House conducted ten hearingsto consider what would eventuallybe called the Fannie Lou Hamer,Rosa Parks and Coretta Scott KingVoting Rights Reauthorization andAmendments Act of 2006.There was some opposition tosection 5 reauthorization submittedby ideological opponents ofrace-conscious civil rights remedies,but on the whole the evidenceand testimony were substantiallypro-reauthorization. Much of thereauthorization debate centeredupon whether the Supreme Court’sdecisions in Georgia v. Ashcroft (539U.S. 461 (2003)) and Reno v. BossierParrish II (528 U.S. 320 (2000)) hadmisinterpreted Congress’s intendedreading of the section’s effect andpurpose tests, respectively; the finalbill restored the law in effect beforethose decisions. In addition to section5 (and its coverage formula insection 4(b), the bill also extendedthe language minority protections insection 203 of the VRA for twentyfiveyears.On April 27, 2006, the rankingmember of the House Committee ofthe Judiciary, John Conyers, joinedSensenbrenner in the first reauthorizationhearing before the Senate JudiciaryCommittee. At Sensenbrenner’srequest, the Senate incorporated thehearing record compiled by the Houseinto the record of the Senate, whichSensenbrenner noted was “perhaps themost voluminous unanimous consentrequest in the history of the Committee.”The Senate went on to have fourmore hearings during May 2006. TheHouse voted on the reauthorizationof section 5 on July 13, 2006, whenit passed 390–33. A week later, onJuly 20, in a speech before the ninetyseventhAnnual Convention of theNAACP, President George W. Bushthanked the House of Representativesfor reauthorizing the VRA and calledon the Senate to act promptly to passthe bill without amendment. That sameday, the Senate reauthorized the VRAby a vote of 98–0.Constitutional Challenges tothe Section 5 ReauthorizationEight days after the July 27, 2006,White House ceremony in whichPresident Bush signed the bill intolaw, a Texas utility district filed aconstitutional challenge to the 2006reauthorization. A three-judge districtcourt unanimously upheld itsconstitutionality in an extensive anddetailed opinion; the appeal in NorthwestAustin Municipal Utility DistrictNo. 1 v. Holder (NAMUDNO) (557U.S. 193 (2009)) reached the SupremeCourt in 2009. The constitutionalarguments were fully briefedand argued, but the Court’s decision,citing the constitutional avoidancedoctrine, did not reach the issue ofconstitutionality.The Court instead reinterpretedsection 4(a) of the VRA to permitany covered jurisdiction to seek“bailout” from coverage under section4(a) on its own, which vastlyincreased the number of jurisdictionsthat potentially could seek bailoutbecause many counties containmultiple towns, school districts,utility districts, and other politicalbodies that conduct elections. TheSupreme Court set the stage for thesubsequent constitutional litigationby cautioning that the burdens imposedby section 5 may no longer bejustified by current needs and that itsgeographic coverage may no longersufficiently relate to the problem ittargets to be an appropriate exerciseof Congress enforcement powers.The legal claim against the 2006reauthorization in the NAMUDNOcase and subsequent cases wasframed primarily in terms of the Cityof Boerne v. Flores (521 U.S. 507(1997)) doctrine: that sections 5 and4(b) are no longer congruent andproportional remedies to a recordof unconstitutional discriminationand therefore are not “appropriate”remedial legislation for either theFourteenth or Fifteenth Amendment.These challenges do not contend thatsection 5 was unconstitutional whenadopted; they grant that it was a constitutionalresponse to a widespreadpattern of intentional voting discriminationwhen it first was enacted.The principal arguments insteadare, first, that “things have changed inthe South” and that the “federalismcosts” of section 5 now outweigh theprospect of intentional racial votingdiscrimination. The rates at whichminority citizens register and vote, andthe number of minority candidateselected to public office, have increaseddramatically since 1965, due in part tosection 5. There have been few federalcourt judgments finding intentionalvoting discrimination in the coveredjurisdictions since 1982. Becausethings have changed, the argumentgoes, there is no longer a pattern ofunconstitutional voting discrimination,and the permanent nationwideprovisions of the VRA (such as section2) provide adequate protectionsagainst voting discrimination whereit does occur. The other main argumentagainst the 2006 reauthorizationis that section 5 coverage continuesto be determined by section 4(b) ofthe VRA, which refers to “tests anddevices” and voter participation levelsin elections between 1964 and 1972,Published in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion 8thereof may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

and that these no longer can rationallyidentify jurisdictions that require thepreclearance remedy.A decision finding section 5 unconstitutionalwould shock many people,especially those minority citizens whohave benefitted so greatly from itsprotections. But the Supreme Court’scautionary language in NAMUDNOhas led many to believe that the Courtmay be prepared to do just that.Today, one covered county(Shelby County, Alabama), two fullycovered states (Texas and SouthCarolina), and one partially coveredstate (Florida) have pending constitutionalchallenges to the 2006 reauthorization.The Shelby County caseis the most immediate candidate forSupreme Court review. It was filedin 2010, stating only a constitutionalchallenge to the 2006 reauthorization;the complaint specifically pledthat the county was ineligible forsection 4(a) bailout due to section 5objections to voting changes by municipalitieswithin the county duringthe past ten years. Because there wasno statutory claim, the plaintiff’s motionto empanel a three-judge courtwas denied and the case was heardby a single judge, District Judge JohnD. Bates, who decided the case as apurely facial challenge based on thelegislative record before Congress.Judge Bates conducted a painstakingreview of the voluminous legislativerecord, including thousandsof pages of testimony, reports, anddata regarding racial disparities invoter registration, voter turnout, andminority electoral success; the natureand number of section 5 objections;the record of judicial preclearancesuits and section 5 enforcementactions; the incidence of section 2litigation; the use of “more informationrequests” and federal electionobservers; the evidence of raciallypolarized voting; and evidence ofsection 5’s deterrent effect.Judge Bates’ legal analysis differedsomewhat from that of theNAMUDNO three-judge court,holding that the Boerne line of casesrepresented an evolutionary developmentof the Katzenbach “rationality”review and that a “congruenceand proportionality” analysis of the2006 reauthorization was required.But, because Congress was enforcingfundamental constitutional rights—the right to vote and the equal protectionright against governmentalracial discrimination—its judgmentsas to the appropriate statutory remedieswere entitled to substantialdeference. Judge Bates found thatCongress legitimately looked to abroad range of evidence in arrivingat its conclusions and that it was notlimited to considering only adjudicatedconstitutional violations orany other specific class of evidence.Finding that Congress acted constitutionally,Judge Bates dismissed thecase on cross-motions for summaryjudgment by the United States andthe defendant-intervenors.The appeal in Shelby County v.Holder was heard on an expeditedtimetable by the D.C. Circuit, whichruled in the defendants’ favor on May18, 2012. Judges David Tatel andThomas Griffith affirmed the districtcourt decision in all respects. Thepanel upheld Judge Bates’ conclusionsthat section 5 remains a congruentand proportional remedy to thetwenty-first century problem of votingdiscrimination in covered jurisdictionsand that the record evidenceof contemporary discrimination incovered jurisdictions was “plainlyadequate to justify section 5’s strongremedial and preventative measures,”and to support Congress’s predictivejudgment that failure to reauthorizesection 5 “would leave minority citizenswith the inadequate remedy of aSection 2 action.”Addressing the claim that the section4(b) formula improperly reliesupon old data, the panel held thatthe legislative record shows that section4(b), which together with theprovisions for bail-in and bailoutforms an integral coverage mechanism,continues to single out thejurisdictions in which discriminationis concentrated, and that section 4(b)is sufficiently related to the problemthat it targets. Judge Steven Williamsdissented in part, on the ground thatthe section 4(b) coverage formulawas outdated and failed to constitutionallydistinguish between thecovered and noncovered jurisdictions.Judge Williams also expressedconcerns about race-conscious decisionmaking, but those had not beenraised by the plaintiff, or argued tothe court. Many observers expect theSupreme Court to grant certiorari.The three other cases are section 5declaratory judgment actions beingheard on expedited schedules by threejudgedistrict courts, with appeals ofright directly to the Supreme Court;however, the district courts will reachthe constitutional issues in those casesonly if preclearance is denied on thestatutory claims. Two of these casesconcern photo ID requirements enactedby Texas and South Carolina, whilethe third concerns Florida’s changesto third-party voter registration rules,early voting periods, and election-dayupdates for registration. The SupremeCourt would retain the option to denyplenary review in all three cases, but itis generally considered likely that theconstitutional question will be arguedand decided by the Supreme Courtin at least one of them if it has notalready done so in the Shelby Countycase. The State of Arizona’s constitutionalchallenge quoted earlier wasvoluntarily dismissed but may also berefiled at a later date.The forthcoming appeals may succeedif the Supreme Court is willing tosupplant Congress’s judgments aboutthe threat of voting discrimination.However, the gravity of the issues, thepowerful decisions by the lower courtsthat have parsed the record, and theunique level of deference due to Congresswhen it acts to prevent racial votingdiscrimination all provide compellingreasons for the Supreme Court toapproach these cases with restraint.Robert A. Kengle and MarciaJohnson-Blanco are co-directors ofthe Voting Rights Project, Lawyers’Committee for Civil Rights UnderLaw, in Washington, D.C.Published in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Redistricting in the Post-2010Cycle Lessons Learned?By J. Gerald Hebert and Megan P. McAllenAfter each decennial federalcensus, state and local governmentsacross the countrybegin the process of redrawing theircongressional districts, state legislativeseats, and local governing bodiesto accommodate population shifts.All state and local redistricting plansmust comport with federal limitations,most notably constitutional equalpopulation requirements and the VotingRights Acts (VRA) of 1965, asamended. Unless constrained by stateconstitutional or statutory requirements,state and local governmentshave wide latitude to develop andapply their own redistricting criteria.In practice, however, few state laws setmore rigorous standards than thosealready required under federal law.Because redistricting is an inherentlypolitical act, redistricting authoritycommonly resides with statelegislatures—a venerable, if deeplyflawed, practice. Legislative redistrictingentrusts political line-drawing decisionsto those who most stand to gain,or lose, from the process. The practiceensures that voters cannot choose theirown representatives; instead, their representativeschoose them.While the U.S. Supreme Courthas observed that it is theoreticallypossible for a partisan gerrymanderto go “too far” because it impermissibly“degrade[s] a voter’s or a groupof voters’ influence on the politicalprocess as a whole,” see Davis v.Bandemer, 478 U.S. 109, 132 (1986),no partisan gerrymander has yetbeen found unconstitutional by thehigh court. Getting a majority ofjustices on the Supreme Court toagree on a judicially manageablestandard has proven an elusive goalfor opponents of egregious politicalgerrymanders. Moreover, the CourtSeveral proposed legislative district maps are displayed at the Indiana State Housein Indianapolis.has thus far been reluctant to regulatepartisan gerrymandering “becausedrawing lines for congressionaldistricts is one of the most significantacts a State can perform to ensurecitizen participation in republicanself-governance.” See LULAC v.Perry, 548 U.S. 399, 416 (2006).Extreme partisan gerrymanderingturns democracy on its head by allowingpoliticians to choose their voters,rather than the other way around;therefore, one would think that theCourt would craft a judicially manageablestandard for assessing such claims.In Vieth v. Jubilerer, 541 U.S. 267(2004), the Court had the opportunityto do just that but was unable to agreeon a legal standard for adjudicatingpartisan gerrymandering claims eventhough several workable standardswere proposed. While five justices inVieth made clear that a constitutionalclaim of partisan gerrymandering maystill be brought in the courts, courts inthe post-2010 round of redistrictinghave dismissed these claims becauseno judicially manageable standard hasemerged. See, e.g., Perez v. Perry andQuesada v. Perry, No. 5:11-cv-00360-OLG-JES-XR (Order of September2, 2011). Issuance of such orders, ofcourse, is tantamount to deciding thatpolitical gerrymandering cases may notbe brought in federal courts.For those frustrated by decades ofincumbent protectionism, there maybe reason to hope. In recent years, ahandful of states have instituted reformsdesigned to curb the undemocraticeffects of extreme partisangerrymandering. Although recentreforms vary widely in substantiveapproach, they generally seek toprevent legislators from drawinglines that benefit their self-interest.Instead, the reforms aim to effectuatethe interests of voters—intereststhat are overlooked in many casesand trampled in others. If successful,these new restraints can counteractthe self-serving incentives thatincumbents bring to bear in drawingpolitical maps. More than that,state-level reforms can restore legitimacyand political accountabilityto a process too long dominated byentrenched partisan interests.Associated Press, APPublished in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion 10 thereof may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Voter-initiated redistricting reformsin Florida and Californiaaptly illustrate the potential value ofreforms generated at the grassrootslevel. Although the process is stillfar from perfect in either state, thechanges represent a considerableimprovement in our democracy andan astounding achievement for thosewho were able to bring about thesereforms. Would-be reformers in otherstates would do well to study andlearn from these incipient programs.Fair Districts for Florida VotersIn a landmark opinion construingtwo recent voter-enacted constitutionalamendments, the FloridaSupreme Court made clear that it isvoters—not incumbent politicians—who “have the rights in the processby which their representatives areelected.” In re Senate Joint Resolutionof Legislative Apportionment No. 1176(In re SJR), 2012 WL 753122, slipop. at 142 (Fla. Mar. 9, 2012). Priorto 2010, Florida redistricting planswere effectively unconstrained by anythingbut the U.S. Constitution andthe VRA; any additional standardsimposed by state law were so vague asto be meaningless. Partisan gerrymanderingby Democrats and Republicansalike ran rampant. That landscapechanged significantly in 2010 whenFlorida voters adopted by a supermajoritythe Fair Districts Amendmentsto the Florida Constitution. Theamendments, by seeking to eliminatethe favoritism and discriminationcommon to legislative redistricting,developed more stringent redistrictingstandards and provided for a robustjudicial review process to ensure compliancewith those standards.Article III, section 21 of theFlorida Constitution now sets forthtwo tiers of redistricting standardsthat the legislature must follow whendrawing districts. The first set ofstandards, codified at section 21(a),identifies three requirements withwhich any plan must comply. First,plans cannot evince any intent tofavor or disfavor an incumbent orpolitical party. Second, they cannothave the intent or result of denyingor abridging the equal opportunityof race or language minoritygroups to participate in the politicalprocess, or diminish minorities’ability to elect their representativesof choice. Third, districts mustconsist of contiguous territory. Section21(b) contains three additionalstandards to guide the redistrictingprocess. As far as practicable, districtsshould have equal populations;they should be compact; and theyshould incorporate existing politicaland geographical boundaries. Theseguidelines are specifically designatedas lower priority than those providedin subsection (a). Together, thesenew standards “act as a restrainton legislative discretion” insofar asthey prohibit legislative redistrictingpractices that were formerly acceptableand widespread.The Florida Supreme Court’srecent opinion highlights the potential—andpotential limitations—ofthe new redistricting regime. Observingthat both plans (senate and statehouse) submitted by the legislaturewould have passed constitutionalmuster before the amendments, thecourt upheld the house maps butinvalidated the senate’s plan forviolating “the will of the voters” asexpressed in the amendments. Inre SJR, slip op. at 185. Critically,the senate plan’s entire numberingscheme was held unconstitutionalbecause it was not incumbent-neutral;districts had been renumberedto benefit otherwise term-limitedstate senators. In addition, senatedistricts inadequately protectedminorities and violated principlesof compactness and contiguity. Asrequired by law, a revised senateplan was later submitted for, and received,the court’s approval.The court’s earlier decision suggeststhat the new standards havesome teeth. However, it is far fromclear that the legislature will adhere tothe constraints absent strong judicialenforcement. While the house’s firstplan apparently avoided improper favoritism,the senate map was every bitas gerrymandered as pre-amendmentmaps. Indeed, term-limited representativesmay have had a more limitedstake in the redistricting than theirsenate counterparts, so it is difficultto draw definitive conclusions aboutthe house plan’s lack of partisan favoritism.Nevertheless, the new standards—whencombined with a courtwilling to enforce them—signify a significantimprovement and protectionfor Florida voters.We Draw the Lines! CitizenRedistricting in CaliforniaCalifornia’s fraught redistrictinghistory further demonstrates thepotential benefits, and inherentlimitations, of redistricting reform.Until recently, California left mapdrawing to the state legislature; inthe event of a veto from the governor,the California Supreme Courtwould appoint “Special Masters” todraw new electoral boundaries. It isnoteworthy that the resulting mapsin pre-2010 California redistrictingcycles, whether drawn legislativelyor by Special Masters, tended toreflect the political inclinations ofthose who drew them. For instance,quantitative analysis of plans createdby Special Masters (in 1971 and1991) indicates a slight advantagefor whichever party claimed a majorityof California Supreme Courtjustices at that time. Vladimir Kogan& Eric McGhee, Redistricting California:An Evaluation of the CitizensCommission Final Plan, 4 Cal. J.Pol. & Pol’y 1 (Feb. 2012), availableat http://polisci2.ucsd.edu/vkogan/research/redistricting.pdf.Direct democracy was an additionalcomplicating factor in thisheated context. Citizen groups, oftenorganized by the “losing” politicalparty, could challenge new maps bypublic referendum. To avoid thatpotentiality, the legislature agreedto a bipartisan gerrymander duringthe 2001 redistricting cycle thatwould protect incumbents on bothsides of the aisle. Because these planspassed by a two-thirds vote, the 2001maps were not subject to referendumPublished in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion thereof 11 may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Demystifying Redistricting Through CommunityEngagementBy Donita JudgeIn states throughout the country,citizens are demanding more accountabilityin redistricting and citizen redistrictingcommissions are replacingstate legislatures in drawing congressionaland state districts. Local communitymembers are also demandinga more open and transparent redistrictingprocess and are drawing andsubmitting maps to their redistrictingbodies for consideration.Community engagement in the redistrictingprocess is rapidly becoming thetrend in communities throughout thecountry. This movement has been growingsince the 1990s when communityorganizers and community residents inMississippi engaged in the redistrictingprocess saw a significant increase in thenumbers of African Americans electedto state, county, and city offices. Thissuccess led to more redistricting trainingthroughout the South in communitiesof color and increased minorityrepresentation. Enhanced technologyand accessible data provide even greateropportunities for meaningful participationamong community members in thecurrent redistricting cycle.The decennial census and congressionalredistricting are interconnectedand required by the U.S. Constitution.The data collected during the decennialcensus are used in redistricting. Redistrictingaffects every political officefrom the House of Representatives tostate legislatures, county commissions,city councils, and school boards. Becausethe census requires the countingof all persons residing in the UnitedStates, districts will contain citizensand noncitizens, voters and nonvoters.When drawing districts, most jurisdictionsuse the total population ratherthan the smaller citizen population toprevent giving preference to one class ofpersons over another class, which maybe unconstitutional—it also guaranteesequal voting weight among voters. Theuse of voting-age population data is animportant consideration to prevent dilutingthe minority vote while ensuringthat redrawn districts do not minimizethe voting strength of minority voters.The terms “redistricting” and“reapportionment” are often usedinterchangeably in redistricting, butthey are not one and the same. Reapportionmentis the process used todetermine how many of the 435 congressionalseats should be apportionedto each state, depending on the state’spopulation. Once seats are apportioned,traditional redistricting principlesare used to guide the process:• “One person one vote” is one of themost basic redistricting principles.This guarantees that each vote hasequal power and does not violateequal protection under the law.In practice, this means that eachdistrict drawn must be nearly equalwith the same number of voters.• The Voting Rights Act of 1965,sections 2 and 5 provide critical protectionsfor minority groups duringthe redistricting process. Section 2prevents diluting the minority voteduring redistricting and appliesto all states. Section 5 providesminority voters with an importantprotection to prevent covered jurisdictionsfrom adopting electionsystems that have a discriminatoryeffect or make minority votersworse off. Covered jurisdictionsare required to submit any electionsystems changes to the Departmentof Justice or to the District Courtof the District of Columbia for preclearancebefore implementing thechange to guarantee that the changedoes not have a discriminatory purposeand/or is not retrogressive.• Contiguity requires that boundariesbe connected unless the districtsare separated by water.• Protecting existing boundariesand geographical features preventssplitting counties, votingprecincts, and other geographicalboundaries.• Compactness can be measured indifferent ways and has garnereda good deal of research and debateamong scholars, especiallywhen measuring districts wherethe minority population is widelydispersed or districts whereboundaries are distorted.• Respecting communities of interestallows a group of people witha common or shared interest tobe grouped together in a district.• Protecting incumbents is not requiredunder federal law whendrawing districts. Some states suchas Florida expressly prohibit thefavoring or disfavoring of politicalparties and/or incumbents whenredistricting, and protecting incumbentsmay not always be in thebest interest of minority voters.In most instances, it is still too earlyto determine whether community engagementin this redistricting cycle willyield the substantial benefits achievedin the 1990s by the Mississippi community.The ultimate measure of success iswhether communities will realize moreopportunities to elect representatives oftheir choice. At a minimum, redistricting,a process of redrawing boundariesthroughout the country once shroudedin mystery and completed behind closeddoors, is becoming demystified throughincreased community participation.Donita Judge is a staff attorney anddirector of the Advancement Project’sRedistricting for an InclusiveDemocracy Project. She spent the2011 redistricting cycle training localcommunities on legal redistrictingprinciples and provided assistance onredrawing boundaries and submittingplans to redistricting bodies.Published in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion 12 thereof may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

challenge. The public outcry was immediateand intense and fueled twoinitiatives aimed at reforming theredistricting process.Propositions 11 and 20, whichpassed in 2008 and 2010, respectively,transferred line-drawing power fromthe legislature to a Citizens’ RedistrictingCommission (CRC) and establishednew constitutional redistrictingstandards designed to maximizenonpartisan interests. Fourteen citizencommissioners are selected by a complexprocess set forth in Article XXI,section 2 of the California Constitution.The selection process aims toeliminate partisan bias by appointingcommissioners without ties to electedofficials or political parties. Notably,there must be five Democratic, fiveRepublican, and four third-party ordecline-to-state commissioners, andsome members of each partisan blocmust vote to approve each map. Theconflict-of-interest rules are particularlyrobust; following their appointmentto the CRC, individuals are ineligibleto hold elective office for a period often years, and ineligible to hold appointedoffice, serve as a paid legislativestaffer, or register as lobbyists fora period of five years. Cal. Const. art.XXI, § 2(c).The official redistricting criteriaadopted by voters through Prop.11, in order of priority, are (1) equalpopulation; (2) compliance with theVRA; (3) geographical contiguity; (4)“[t]o the extent possible,” respectingthe geographic integrity of any city,county, neighborhood, or communityof interest; (5) geographical compactness;and (6) “[t]o the extent practicable,”“nested” districts, meaning eachsenate district would be composedof two whole Assembly districts, andeach Board of Equalization districtwould contain ten senate districts.While none of these standards wasforeign to California redistrictinglaw (except arguably the protectionfor communities of interest), rankingthem in order of priority was new.Language in the proposition alsoprohibited drawing maps “for thepurpose of favoring or discriminatingagainst an incumbent.” Perhaps mostnotably, the new system provides forsubstantial public input throughoutthe process (see generally http://wedrawthelines.ca.gov).Because they expanded opportunitiesfor minority representation,kept more communities intact, andproduced comparatively compactdistricts, the CRC maps are a real improvementon the legislatively drawn2001 maps. The new districts are alsoslightly more competitive overall,making elections more likely to reflectthe electorate’s political will. Ifthey withstand forthcoming legal andreferendum challenges, they have thepotential to seriously reshape California’spolitical landscape.California’s experience also servesas a reminder that any political mapwill have winners and losers. Makingthe redistricting process more transparentand participatory, while alaudable innovation, will not “eliminatethe zero-sum nature of electoralcompetition.” Kogan & McGhee,supra, at 36. One way or another,organized interests will try to shapefuture redistricting plans. At leastthe new system ensures that ordinarycitizens are also able to play an importantrole in shaping new plans.Redistricting reform is most achievablein direct democracy states wherevoters can reform the process notwithstandingthe opposition of incumbentofficeholders; state legislators areunderstandably hostile to legislationthat could put their positions at risk.However enacted, though, state-levelreforms represent the best, and mostimmediate, way to restore democracyto representative government. Hopefully,we will see additional states instituteredistricting reforms over the course ofthis decade. That would be a good doseof medicine for our ailing democracy.Texas’s Post-2010Redistricting CyclePerhaps the other new developmentin the post-2010 redistricting cycle isbest illustrated by the experience inTexas. The Texas legislature enactedredistricting plans for its congressionaldistricts, state senate seats,and state legislative seats in the 2011legislation session. Texas is one ofsixteen states that must obtain federalapproval (a process known as preclearance)of their redistricting plansunder the VRA. Rather than choosethe speedier and less costly alternativeof obtaining approval from theU.S. Department of Justice (DOJ),Texas instead sought approval froma special three-judge court in Washington,D.C. (In the interest of fulldisclosure, Gerald Hebert representsthe interveners in the D.C. case opposedto the Texas senate plan andto the Texas congressional plan.)Other states subject to thesespecial preclearance provisions ofthe act also sought VRA approvalin the D.C. court this cycle, morestates than any previous cycle. Whatdrove Texas and these other states tofollow this course? All but one havea Republican attorney general orgovernor who had expressed mistrustover the review of their plan by “theObama Justice Department.” Exceptfor the State of Texas, these otherstates simultaneously sought approvalin the D.C. court and from theDOJ, which they are entitled to do.The DOJ approved all of the planssubmitted to them, but because Texasdid not seek administrative approval,the case went to the D.C. court.The Texas lawsuit proved to be agreat teaching tool for those who wantto know what not to do in a redistrictingcase. First, even though Texascould have sought administrativeapproval from the DOJ, it did not doso. Private parties opposed to all threeof Texas’s statewide plans quickly intervened.Eventually the DOJ filed ananswer in the case saying it did not opposethe senate plan, but because privateparties had intervened in the suitand were opposed to the senate plan,the senate plan remained at issue inthe case, notwithstanding the DOJ’sfailure to oppose it. If Texas had simultaneouslysought administrativeapproval of all three plans from theDOJ (as other states had done), thesenate redistricting plan would havePublished in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Democracy at StakePolitical Equality in the Super PAC EraBy Adam Lioz and Liz KennedyDavid Gregory of NBC’sMeet the Press recentlyasked Newt Gingrich if hehad any advice for a future presidentialcandidate. Without missinga beat, the former Speaker ofthe House answered in five words:“Raise a lot of money.”Although Gingrich likely lost theRepublican presidential primary formyriad other reasons, he could beforgiven for concluding that moneywas all that mattered in the end. Hiscampaign was on its last legs andmired in debt when one wealthydonor extended him a critical lifeline.Casino magnate Sheldon Adelsonpumped $5 million into a pro-Gingrich Super PAC called WinningOur Future, single-handedly keepingGingrich competitive. Adelson andhis wife would ultimately contribute$20 million to help Gingrich beforefinally pulling the plug. But even thisgenerosity couldn’t keep pace withMitt Romney’s prodigious fundraising.Romney’s campaign andpro-Romney Super PAC raised acombined $154 million through April2012, overwhelming the competitionwith a constant barrage of ads.It’s no secret that money hasdominated American politics fordecades or more—and that its gripon our democratic process has neverbeen tighter. In the article below,we discuss why the above story isso troubling, the extent of the problem,how we got here (from a legalperspective), and what we can doto create a democracy in which thestrength of a citizen’s voice does notdepend on the size of her wallet.What’s at Stake?As a threshold matter, why shouldlawyers and citizens generally careSen. Charles Schumer and Sen. Al Franken speak during a news conference on CapitolHill in Washington, February 1, 2012, regarding the disclosure of Super PAC donors to theRepublican presidential candidates.about the role of money in Americanpolitics? The role of money mattersbecause it determines how we balancetwo core political and constitutionalvalues—liberty and equality—andhow we negotiate the boundariesbetween two critical spheres of ourlives—political and economic.Liberty, specifically protectingindividuals from an oppressive state,was a central concern of the founders,ensconced most concretely inthe Bill of Rights. Equality makes aninitial appearance in the Declarationof Independence, but our modernunderstanding of the concept wasnot a parallel concern for the Founders.Their declaration that “all menare created equal” was progressivefor its age, but only included whitemen with property. But Americanhistory changed both our writtenConstitution and our collective politicalvalues.Many of the seventeen constitutionalamendments following the Billof Rights furthered political equalityby expanding the franchise; thisvalue was expressed most directlythrough the Reconstruction Amendmentsand the Supreme Court’s oneperson,one-vote, poll tax, propertyrequirement, and candidate filing feecases. The initial restrictions on politicalparticipation based on wealthand other factors have proven incompatiblewith our democratic ideals;they have given way to a widespreadunderstanding that a truerepresentative democracy requiresall citizens to have a substantiallyequal voice in making the decisionsthat govern their lives.Liberty and political equality arenot zero-sum concepts—but theyare in tension at the intersection ofmoney and politics, requiring a carefulbalance. And the only way tomaintain this balance is to make surethat democracy writes the rules forcapitalism, not the other way around.In the United States, we’ve chosenrepresentative democracy as ourpolitical system and (moderated)capitalism as our economic system.Critically, we hold different valuesAP Photo/J. Scott ApplewhitePublished in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

dear in each of these two arenas.In the political sphere, equality is aparamount value, on par with libertyas discussed above. Regardless ofour partisan affiliations, we all subscribeto the concept of one person,one vote, a vision in which we cometo the political table as equals.Not so in the economic sphere. Wedisagree over how to divide the economicpie, but few (if any) prominentvoices argue for complete equality.We have decided to accept a certainamount of economic inequality inservice of competing values such asefficiency and proper incentives.In sum, our twin commitments todemocracy and capitalism leave mostof us with the general sense that everycitizen has an equal right to participatein political life, but not necessarily theright to possess an equal number ofwidgets or dollars. But to maintainequality in the political arena, we cannotallow that space to be defined byeconomic arrangements.Without proper protections,economic power can be translateddirectly into political power and governmentcan be largely (or completely)captured by powerful economicinterests. Ultimately, the populardemocracy the Founders fought tocreate degenerates into plutocracy,where the privileged use their powerto entrench their status and governmentserves the already powerfulinstead of serving as a tool for collectiveaction on behalf of the public.This is why for-profit corporationsshould not be permitted tospend money earned by makingwidgets or selling financial servicesto influence political outcomes. Andit’s why individuals who were successful(through industry) or lucky(through inheritance) economicallyshould not have untrammeled abilityto translate that economic powerinto a stronger political voice.Allowing corporations or wealthyindividuals to purchase politicaloutcomes makes a mockery of theprinciple behind one person, onevote. And it sets off a vicious cyclethat undermines the moral legitimacyof both politics and economics in oursociety. Giving the wealthy a greatervoice than average citizens corruptsthe process of political decision making.This, in turn, calls into questionthe legitimacy of our economicarrangements, because economicconditions are set or sanctioned inthe political arena (where we decidetax policy, regulations, and so forth).This, finally, makes the influence ofeconomics on politics all the worse—completing the cycle.The bottom line is that laws thatregulate the role of money in politicsare the firewalls that prevent theperhaps warranted inequalities inthe economic sphere from becomingunwarranted disparities in the politicalarena. They are our strongesttool for protecting democratic politicalequality in a capitalist societyand maintaining the critical balancebetween the fundamental values ofliberty and equality.Big Money’s Grip onAmerican PoliticsHow well are we striking this balancein the United States in 2012? As the introductorystory implies, not very wellat all. Recent Supreme Court decisionshave made a bad situation worse.People often express shock atthe sheer (and escalating) amountof money spent on elections yearafter year. Candidates, parties, andoutside groups spent $5.3 billion in2008. That looks quaint this year,as the presidential candidates seekto approach $1 billion each, outsidegroups step up their fund-raising,and congressional candidates buildbigger war chests to ward off outsideattacks. Super PACs are politicalcommittees, created in 2010 in thewake of Citizens United and a lowercourtruling, that are permitted toraise unlimited funds from virtuallyany source because they do notcontribute to candidates or parties,but rather spend money “independently.”These groups—includingboth issue-based organizations andthose supporting President BarackObama, the cluster of Republicanpresidential primary candidates,and various congressional candidates—raiseda combined $200 millionthrough the first quarter of 2012.Just one cluster of outside groups—led by former Bush aide KarlRove—announced plans to spendroughly $1 billion on November’selections.The most important problem isnot the total amount of money spentto influence elections and policy, butrather its sources.The vast majority of the moneyflowing to candidates, parties, SuperPACs, and other outside groupsis coming from a tiny number ofwealthy donors. This has long beenthe case, and Super PACs—with nocontribution limits—have made abad problem worse. In 2011, 93 percentof Super PAC funds raised fromindividuals came in contributionsof at least $10,000—from just 726Americans. Fifteen donors, each givingat least $1 million, accounted formore than a third of the money.In addition to wealthy individuals,for-profit businesses are increasingly“investing” in control over ourdemocracy. Seventeen percent of2011 Super PAC money came frombusiness interests. This doesn’t soundlike much, but the figure greatly underestimatesthe amount of businessmoney in politics now and in futureelection cycles. Super PACs are requiredto disclose all of their directdonors, so most public companieswith reputations to protect and anaversion to such disclosure are choosingto give in other ways.And, in fact, much of the moneystreaming into the political process isflowing through 501(c)(4) nonprofitorganizations or 501(c)(6) trade associationsthat are not required todisclose their donors. Section 501(c)(4) nonprofits alone outspent SuperPACs in the 2010 cycle, and muchof the billions of dollars in outsidefunds spent in 2012 will flow throughthese two types of organizations.The Chamber of Commerce, for example,changed its spending patternsspecifically to avoid newly enforcedPublished in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

disclosure requirements. These companiesseek to influence voters—andultimately the composition of ourgovernment—yet avoid democraticaccountability by keeping their politicalspending in the dark.This big-money system skews publicpolicy on issues that affect our lives.Candidates who raise or spend themost money (or have the most raised orspent on their behalf) win the vast majorityof the time. Winning candidatesare accountable to the small minority ofwealthy contributors who finance theircampaigns (a 2005 study by a Princetonpolitical scientist determined, forexample, that low-income constituentshave zero impact on U.S. senators’ votingrecords). And a growing body of researchshows that these big donors lookdifferent (more white and male) andhave different priorities and opinions(care more about the deficit than unemployment,for example) than averageearningcitizens. It’s getting harder forthe working and middle class to getahead because our national prioritiesare being set by and for the 1 percent, adirect result of economic power beingtranslated into political power.How Did We Get Here?The single biggest reason for bigmoney’s current stranglehold on U.S.elections is that the Supreme Courthas severely constrained possiblesolutions to the difficult problem ofbalancing liberty and equality.The modern era in campaign financeregulation began in the wakeof the Watergate scandals. The FederalElection Campaign Act (FECA)established a comprehensive set ofrules for the use of money in politics,with contribution and spending limitsfor campaigns. This regulatoryframework, however, was hobbledright out of the gate by the SupremeCourt’s 1976 Buckley v. Valeo decision(424 U.S. 1 (1976)).The Buckley Court held thatspending money on politics was aform of speech and therefore subjectto strict scrutiny. While recognizingthat the government had a compellinginterest in regulating money inpolitics to prevent government corruptionor the appearance of corruption,the Court specifically rejectedpromoting political equality as a justificationfor campaign finance rules.Based on this framework, the Courtupheld limits on the size of contributions(attenuated speech, which presentsthe risk of corruption) but struckdown similar limits on expenditures(direct speech, which does not).This seminal case created a suspectdivide between contributionsand expenditures, and it opened theThe modern era incampaign financeregulation beganin the wake of theWatergate scandals.door for wealthy candidates anddonors to dominate the politicalprocess. Buckley is what allowedMichael Bloomberg to spend as muchof his billions as he desired to becomemayor of New York city. Buckley iswhat protects Adelson’s “right” tospend unlimited sums on “independentexpenditures” (though beforeSuper PACs he would have had tospend his money directly). Buckleyis what prevents Congress and thestates from limiting total campaignspending and, in more recent applications,from enforcing contributionlimits set at levels that average Americanscan afford to give.But the case left Congress, states,and future justices with some flexibilityto regulate the role and impact ofmoney in politics. The Buckley decisionembraced rules on disclosure; left undisturbedthe longstanding ban on corporatetreasury spending in elections;did not definitively close the door on rationalesother than corruption; did notconclusively shut down the notion thatso-called independent spending couldlead to corruption or its appearance;and did not impose a final and narrowdefinition of corruption.Congress embraced this flexibility inpassing the Bipartisan Campaign ReformAct of 2002, known as McCain-Feingold, and the Supreme Courtupheld its major provisions—includingits ban on a particular type of electoralspending by corporations—in McConnellv. FEC (540 U.S. 93 (2003)).Critically, the McConnell Courttook a broad view of corruption, writingthat it is “not confined to briberyof public officials but extend[s] to thebroader threat from politicians toocompliant with the wishes of large contributors”;the possibility that legislatorswill “decide issues not on the meritsof the desires of their constituencies, butaccording to the wishes of those whohave made large financial contributionsvalued by the officeholder” is a moresubtle but “equally disturbing” form ofcorruption than straight quid pro quo;preventing the appearance of corruptionis “of almost equal concern” and is“critical . . . if confidence in the systemof representative [g]overnment is not tobe eroded to a disastrous extent”; andgovernment must be empowered toregulate money in politics or else “thecynical assumption that large donorscall the tune could jeopardize the willingnessof voters to take part in democraticgovernance.”The Roberts Court, however, hasreplaced the flawed but flexible Buckleyregime with a rigid anti-regulatoryorthodoxy. In 2007’s FEC v. WisconsinRight to Life (546 U.S. 410 (2007)),and again in 2008’s Davis v. FEC (554U.S. 724 (2008)), the Court overruledparts of McConnell and overturnedparts of McCain-Feingold, secondguessingCongress’s considered judgmentand constraining its ability tolegislate in this complex field. Then, onJanuary 21, 2010 (barely six years afterMcConnell), the Roberts Court issuedthe infamous Citizens United v. FECruling (558 U.S. 50 (2010)).Citizens United explicitly rejectedvirtually every conceivable rationalefor limiting the role of money in politicsother than fighting corruption or its ap-Published in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Judicial Elections Justice for Sale?By Bert BrandenburgFor more than a decade, America’scourts have come under unprecedentedattack in states that hold judicialelections. Partisans and special interestshave organized aggressive effortsto use elections to tilt the scales of justicein their favor. As a result, manyAmericans fear that justice is for sale.Here is a summary of the mostworrisome trends.Special-Interest MoneyJudicial campaign fund-raisinghas soared, from $83.3 million in1990–99 to $206.9 million in 2000–09. James Sample, Adam Skaggs,Jonathan Blitzer & Linda Casey,New Politics of Judicial Elections,2000–2009: Decade of Change(Charles Hall, ed. 2010), http://www.justiceatstake.org/media/cms/JASNPJEDecadeONLINE_8E7FD3FEB83E3.pdf [hereinafter Decade ofChange]. Judicial candidates raisedmoney extensively from parties whomay appear before them.Special-interest “super-spenders”played a central role in the decade’ssurge. In twenty-nine contested elections,the top five super-spenders investedan average of $473,000 each,compared to an average of $850given by all other contributors. Id.By the 2009–10 election cycle, noncandidategroups poured in nearly30 percent of all money spent to electhigh court justices, far greater thanthe 18 percent of total spending byoutside groups four years earlier.Adam Skaggs, Maria da Silva,Linda Casey & Charles Hall, NewPolitics of Judicial Elections,2009–10 (Charles Hall, ed. 2011),http://brennan.3cdn.net/23b60118bc49d599bd_35m6yyon3.pdf [hereinafterNew Politics of Judicial Elections].TV AdvertisingParallel to the money explosion, theairing of ugly, costly TV ads becamea prerequisite to winning a statesupreme court seat. From 2000–09,$93.6 million was spent on air timein high court contests. Decade ofChange, supra. The subsequent2009–10 biennium saw the costliestnonpresidential election cycle for TVspending in history, at $16.8 million.The role of advertising by noncandidategroups accounted for 42percent of all TV ad spending between2000 and 2009—and for mostof the negative advertising. Id.In 2008, for example, a MichiganDemocratic Party ad questionablyportrayed Chief Justice Cliff Tayloras sleeping on the bench. In 2010,a pro-business coalition seeking tooust Illinois Justice Thomas Kilbrideaired an ad in which actors posedas convicted thugs, recounting theirgrisly crimes and portraying Kilbrideas taking their side. New Politics ofJudicial Elections, supra.Retention ElectionsJustice Kilbride raised $2.8 millionto keep his seat in a retention election,illustrating another worrisometrend. Id. Throughout the 2000–09decade, retention elections, in whichpearance. It explicitly overruled an important1990 case, Austin v. MichiganChamber of Commerce (494 U.S. 652(1990)), that sanctioned limits on corporateindependent expenditures dueto the government’s compelling interestin protecting our democracy from “thecorrosive and distorting effects of immenseaggregations of wealth that areaccumulated with the help of the corporateform and that have little or nocorrelation to the public’s support forthe corporation’s political ideas.”Next, it defined corruption in anextremely limited and unrealisticway, taking the teeth out of the survivingstate interest. “The fact thatspeakers may have influence over oraccess to elected officials does notmean that these officials are corrupt,”Justice Kennedy wrote for themajority. “Ingratiation and access,in any event, are not corruption.”Justice Anthony Kennedy continuedwith an unsubstantiated factual assertion:“[t]he appearance of influenceor access, furthermore, will notcause the electorate to lose faith indemocracy.”The Citizens United Court thentook aim at a sixty-three-year-oldlaw prohibiting corporations andunions from spending Treasurymoney directly on elections, overturningMcConnell in the process.Many people are familiar withthe Court’s infamous conclusionthat corporations have essentiallythe same political speech rights asnatural persons. Not everyone understandsthe Court’s formalisticlogic. Continuing with the themeof turning unsupported empiricalclaims into immutable statementsof law, Justice Kennedy wrote that“independent expenditures, includingthose made by corporations, donot give rise to corruption, or theappearance of corruption.” In otherwords, spending conducted withoutconsulting a candidate can’t corruptthat candidate—and so it doesn’tmatter who/what does the spending.This logic both sanctioned unlimitedcorporate political spending andopened the door to Super PACs.Citizens United, though, was builtupon a foundation of false assumptions.Polling has consistently shownthat that big money in electionsreduces Americans’ trust in government.Sixty-eight percent ofrespondents agreed that a companyPublished in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

voters choose “yes” or “no” to keepan incumbent in office, had escapedthe overall spending surge. Thatchanged abruptly in 2010.The $3.48 million Illinois race wasthe second costliest retention electionever, and the costliest in a generation.A total of nearly $4.9 million wasspent in four states: Illinois, Iowa,Alaska, and Colorado. That morethan doubled the $2.2 million spent inall high court retention elections nationallyfor the entire previous decade.Iowa’s retention elections sentshockwaves around the nation.Three state justices were swept fromoffice by voters angry over a decisionpermitting same-sex marriage.National anti-gay groups providedmost of the ouster campaign’s nearly$1 million in financing. Social conservativeshoped the election woulddeliver a chilling message to judgesin all states, not just Iowa.Growing awareness of the threatto fair courts also brought positives.In 2009, the U.S. Supreme Courtintervened when runaway spendingon a West Virginia judicial electionspun out of control. In Caperton v.Massey, 129 S.Ct. 2252 (2009), theCourt disqualified a justice froma case involving a coal companywhose chief executive had spent millionsto help elect him. The Courtsaid there was a “serious risk of actualbias.” Decade of Change, supra.Caperton moved the issue of recusalto the national stage and createdincentives for states to make suretheir recusal procedures addressedthe new politics of judicial elections.Since Caperton, however, progresson recusal reform has been slow.Moreover, the public, the media,and the legal community have takennote and demanded reforms to restoretrust in the courts. Since 2001,nationwide polls have shown thatthree in four Americans believe campaigncontributions influence courtroomdecisions. Resource Overview,Justice at Stake Campaign, http://www.justiceatstake.org/resources/polls/cfm. Even 46 percent of statejudges believe election spending affectsjudges’ rulings.In a 2011 poll commissionedby Justice at Stake, 93 percent ofvoters said judges should not hearcases involving major financial supporters,and 84 percent said theybelieve all contributions to judicialcandidates should be “quickly disclosedand posted to a website.”20/20 Insight LLC, National RegisteredVoters Frequency Questionnaire(Oct. 10–11, 2011), http://www.justiceatstake.org/media/cms/NPJE2011poll_7FE4917006019.pdf. Americans support the Constitution’svision of courts free fromoutside influence.But a continued challenge by specialinterests threatens to destabilizefair and impartial courts.“The crisis of confidence in theimpartiality of the judiciary is realand growing,” Justice Sandra DayO’Connor wrote in 2010. Sandra DayO’Connor, Forward, in Decade ofChange, supra. “Left unaddressed,the perception that justice is for salewill undermine the rule of law thatthe courts are supposed to uphold.”In 2011, Iowa Chief Justice MarkCady delivered his own grim warning.He addressed legislators on theState of Iowa’s courts, but his messagewas intended for courts acrossAmerica. “This branch of government,”Chief Justice Cady said, “isunder attack.” New Politics ofJudicial Elections, supra.Bert Brandenburg is executivedirector of Justice at Stake, a nonpartisancampaign to protect courts frompolitical and special-interest influence.that spent $100,000 to help electa member of Congress would beable to later influence that memberto change a vote; and more than aquarter of eligible Americans saythey are less likely to vote becausebig money has a greater influenceon elected representatives than averageAmericans. This “independent”spending is at minimum creatingan appearance of corruption that isleading to voter disengagement.Next, the Court assumed that “independentexpenditures” would betruly independent—not coordinatedin any way with candidates or parties.But weak regulations allow candidatesto raise money for supportiveSuper PACs, which are usually runby longtime employees or associates.It stretches credulity to say that RestoreOur Future is truly independentfrom Mitt Romney and that a gift tothe former generates no appreciationfrom the latter.In addition, the Court counted onfull disclosure of contributions andspending to “permit[ ] citizens andshareholders to react to the speechof corporate entities in a proper way.This transparency enables the electorateto make informed decisions andgive proper weight to different speakersand messages.” But, as discussedabove, a significant amount of campaignmoney cannot be traced to itsoriginal source.Finally, the Court thought thatprocedures of shareholder democracywould prevent corporate managersfrom squandering shareholder moneyon questionable political expenditures.Instead, shareholders rarely knowwhat a corporation is spending in politicsand lack the right to vote to approveor disapprove of such spending.SolutionsHow do we create the kind of balancethat respects liberty while safeguardingpolitical equality?Ultimately, the simplistic (andhence impoverished) anti-regulatoryview of the Constitution embodied inBuckley and Citizens United must giveway to a holistic vision that recognizesthe competing values at stake at theintersection of money and politics.There has been a lot of talk lately aboutoverturning Citizens United, rollingback the notions that corporations havefree speech rights and that independentexpenditures (as a matter of law) cannotPublished in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. 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corrupt democratic government. This isnecessary, but not sufficient. It returnsus to the halcyon days of 2009, which isto say, it won’t solve the whole problem.It’s easy to forget that Sheldon Adelsoncould have spent every dime of the$20 million he shelled out for Newt Gingrichpre-Citizens United. He just wouldhave had to cut his checks directly toconsultants or TV stations rather thanfiltering them through a Super PAC.This is because Buckley explicitlyrejected political equality as a legitimaterationale for regulating money in politics.To restore balance we must movebeyond the corruption rationale andelevate political equality to its properplace in our constitutional tradition.There are two ways to do this.First, we can select a new generationof justices and judges who understandthat liberty and equality must beconstantly balanced and who viewthe First Amendment as most Americansdo—as an essential safeguard topromote political accountability androbust democratic participation, not atool for wealthy individuals and institutionsto use to dominate the politicalprocess. The replacement of just onejustice in the Citizens United majoritycould result in that decision beingoverturned. It might take a few morereplacements to reach back to correctBuckley and firmly establish thatCongress and the states may controlthe role of money in politics to protectpolitical equality and strengthen theirdemocratic governments.The other way to take back controlof our Constitution is to explicitlyamend it. This, of course, is difficult—requiring two-thirds of each houseof Congress to refer an amendmentthat must then be ratified by threequartersof the states (in absence ofa convention). At least twelve suchamendments have been introduced inCongress, and there is a growing citizenmovement to demand action.Short of constitutional change,there are several ways that Congress,federal agencies, and state legislaturescan act to restore balance.First, Congress and state legislaturescan provide public funding for candidatesto help ordinary citizens run competitivecampaigns without dependingon well-heeled donors. One popular wayto do this is to match small contributionsfrom individuals. New York City’s system,for example, provides a six-to-onematch (turning a $20 check into $140),which has proven to engage more smalldonors, diversify the donor pool, andmake candidates less dependent on anarrow slice of wealthy donors. Anotherstrategy that has been used in the states(and at the federal level in the past) is toprovide vouchers, refunds, or tax creditsfor small political contributions.Next, Congress and states shouldprotect shareholders whose fundsmay currently be used for politicalpurposes without their knowledge orapproval. Congress and state legislaturesshould require for-profit corporationsto obtain the approval oftheir shareholders before making anyelectoral expenditures and to publiclydisclose any contributions to groupsthat make political contributions orexpenditures. In the 1988 case CommunicationsWorkers v. Beck (487U.S. 735 (1988)), the Supreme Courtproclaimed that union members havethe right to a refund for that portionof their dues used for political advocacy.Congress and states should provideshareholders with the same right.The Securities and ExchangeCommission (SEC) has the authorityto require all publicly traded companiesto disclose their political spending.There is currently a petition beforethe agency to do just that—andthis petition broke the SEC recordfor public comments this spring, withmore than 250,000 Americans urgingthe Commission to improve disclosureof corporate political spending.Congress, the states, and the FederalElection Commission (FEC)also should improve disclosure byclosing loopholes that currently allow501(c)(4) nonprofit organizations and501(c)(6) trade associations to makepolitical expenditures or contributionswithout disclosing their donors.Also, the Internal Revenue Serviceshould enforce its rules to stop clearlypolitical groups from abusing theirstatus as nonprofit 501(c)(4) socialwelfare organizations.Finally, Congress and states shouldtighten rules on coordination betweencandidates and outside groups such asSuper PACs that are permitted to raiseunlimited funds because their politicalactivity is supposed to be “independent”of candidate campaigns. Current rulesare riddled with loopholes—allowingcandidates to raise money for SuperPACs and appear in their ads, for example.The FEC can tighten coordinationrules without congressional action.ConclusionAbraham Lincoln recognized theAmerican democratic experiment aspreserving government “of the people,by the people, for the people.”Super PACs, and the big-moneysystem they represent, are the latestthreat to that experiment.But these dark clouds hoveringover our democracy may have a silverlining. The manifest disregard forbasic principles of political equality inherentin the explosion of Super PACspending makes perfectly clear whathas long been true: Largely becauseof misguided rulings by the SupremeCourt, we currently live in a countrywhere the strength of a citizen’s voicedepends on the size of her wallet.Now, thanks to widespread reporting,sublimely absurd exchangesabout Super PACs in the Republicanprimary debates, and StephenColbert’s spot-on satire, the rulesgoverning money in politics have becomea national joke.Yet, we can seize this moment totransform this farce by putting real solutionsonto our national agenda. Nowis the time to push our leaders to enactthe range of solutions listed above.The good news is that people aremobilizing across the country tofight back against our money-drivensystem. There are opportunities foraction at the national, state, andlocal levels, and perhaps more energydirected to fixing our democracythan at any time since the aftermathof Watergate, when Congress passedcontinued on page 25Published in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion 20 thereof may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Elections Must Be About More Than WinningBy Lillie ConeyElections are about who wins,but increasingly they also are abouthow candidates lose. Controversialelection outcomes occur if marginsof victory are too close for the mediato declare a definitive winner withinhours of polls closing.The 2000 presidential election’s ballotingdebacle in Florida has becomesymbolic of the ways that a candidatewins and loses: systemic problems withelection management results in a frustratedballot-counting process, votingmachine failures, central physical ballotcount errors, flawed felon voter rollpurges, poor ballot design, and partisanpolitics infecting election administration.The 2000 Florida election brought theseproblems to national attention—Congressresponded with the Help AmericaVote Act (HAVA). The law establishesa federal agency to assist states with federalelection administration, provided aone-time grant to states to purchase newvoting machines, and created independentvoting rights for persons with disabilities.Unfortunately, HAVA did notend the controversies associated withclose elections.Election management for manyjurisdictions is too complicated to manage—outsourcingadministration ofelection technology is common. Newelectronic voting system problems raisequestions about who won or lost an election.In 2004, a Broward, Florida, votecounting error turned a losing gamblingmeasure—to legalize gambling—into awinner by adding thousands of erroneousabsentee ballot votes, which werelater discovered and corrected.The Ways a Candidate CanLose an ElectionAlthough money helps, candidates mustoutperform their opponents in persuadingcontributors, volunteers, and votersto support a campaign. A candidate canlose an election by not having the rightmessage or strategy, by not enough orinefficient use of resources, or throughevents that are outside the control of thecandidate or campaign.A candidate also can lose an electionthrough system failures: eligible votersprevented from voting, cast votes notcounted as having been cast, votingtechnology failures, human error, orpeople in official election duties creatingan advantage for one candidateover another. Government employeesare not above acting under officialauthority to influence elections suchas reports of police hindering access topolling locations by minority voters.Voting system technicians’ intentionalor unintentional actions can preferenceone candidate over another. In 2006,there were 18,000 more votes cast onother ballot items in one county withinFlorida’s Thirteenth CongressionalDistrict than in that congressional racewith a 369 margin of victory. Afterinvestigation, the problem was a flaw inthe electronic ballot design that placedpart of the race for the Florida’s ThirteenthCongressional District descriptionon one screen and the candidatenames on the next screen.Election administration responsibilitiescan be political parties or city,county, or state governments. Electionadministrators often have little politicalpower over government resources toaddress known weaknesses in electionadministration. They are also thepeople who are most likely to receiveblame should something go wrong. Despitetechnological advances, electionsstill are human-centric: human error—whether caused by administrators, pollworkers, or voters—can happen at anystage of the election process.Why Is Electronic VotingSystem TransparencyCritical to Election Integrity?Candidates have sued over close electionresults of local and state electionsin order to gain access to the softwareand firmware used in voting machines,with no success. Courts are reluctantto challenge the determinations of electionadministrators. For example, a2004 contested election in New Mexicoresulted in a very close election betweentwo candidates vying for the same seat.Patricia Rosas Lopategui v. Rebecca Vigil-Gironsought a “meaningful inspectionof their electronic voting machines” toverify that the reported results for therace were correct. In that election, votersreported seeing on the ballot screen theirvote switch from the candidate they supportedto another candidate.Recommendations forElection 2012Suggestions on ways to improveelections and confidence in their outcomemight include• Depoliticize election administration—arbitratorscannot routinelyengage in conduct that mightcall their judgment into doubt.• Create a set of election auditingbest practices and laws to protectthe integrity of digital and physicalballots. Financial systems auditingmay hold lessons for methodsof developing better auditingmechanisms for public elections.• Adopt software independenceprotocols, which means thatelection outcomes do not rely onthe accuracy of voting systemsoftware or firmware.• Promote poll worker volunteers—thenation requires1.2 million poll workers forNovember 6, 2012.• Deal effectively with the media’sdemands for early election results—itmay take two to threedays for election technologyglitches or problems to surface.Lillie Coney is associate director ofthe Electronic Privacy InformationCenter (EPIC) in Washington, D.C.She has also served on the ElectionAssistance Commission Board ofAdvisors (2010–11).Published in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion thereof 21 may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Interview with Lawrence BacaThurgood Marshall Award WinnerBy Wilson Adam SchooleyDoing what he has always done, instinctively and well—battling stereotypes—LawrenceBaca is the Lone Ranger, not Tonto. The self-described “beach Indian” is farfrom laid-back when it comes to pursuing justice, never shying from a fight for whatis right and often standing alone at the leading edge of crusades for change—fromchallenging racialized mascots in high school, to founding his college Indian organization,to becoming the first American Indian ever hired through the Departmentof Justice Honor Program, to filing more cases on behalf of American Indians thanany other attorney in the history of the Civil Rights Division. His cases includeseveral of great import for Indian voting rights and the “Brown v. Board of IndianCountry.” He literally changed the face of the Justice Department, both by hisexample and recruiting efforts, and he is a charming fellow and gifted photographerto boot. It’s our pleasure to both celebrate and introduce you to Lawrence Baca.my brother and I were the only Indiankids at El Cajon Valley High School.When you go farther out, there wereabout fifteen Indian Reservations inSan Diego County; the racial restrictionsin the county for Indian peoplewere out there in Santee and thoseareas where there were certain parks,restaurants, movie houses that hadsigns up saying “no Indians allowed”or “no Indians served” and I have avery strong and vivid memory of thosesigns.The full version of this interviewcan be found online at http://www.americanbar.org/publications/human_rights_magazine_home.html.WAS: Let’s start with your formativeyears through college at SantaBarbara.LB: I was born in Colorado in1950 and my father was a farmer/rancher there with his dad and brothers.In 1953 he moved to Californiaand I grew up in San Diego County,a thousand miles away from my tribeand 2,000 miles away from my family,so I was as much a beach Indian asanything else. But my mother is notIndian, and my father is a full-bloodedPawnee Indian, and they met at a timewhen it was against the law in half thestates for an Indian to marry a whiteperson. I often joke about being amember of the Virginia Bar Associationwhere it was against the law inVirginia for Indians to marry whites,and when you read the famous Lovingv. Virginia case, there is a footnotewhere they specifically talk about theIndians and whites being in an illegalmarriage, except for what is referredto in the literature as “the Pocahontasfootnote” because it says that if youare less than one-sixteenth AmericanIndian that an Indian can marry awhite person because he might be a descendantof John Rolfe and Pocahontas.My wife and I met in high schoolalthough we didn’t start dating until Iwas in college, but at the time we firstsaw each other, it was against the lawin Virginia for us to marry.WAS: Tell me about your experiencegrowing up as a transplantedPawnee in California.LB: There is a racialized history toCalifornia most people are unawareof that included a form of segregationin schools; segregation throughout thecountry was at the time either mandatoryin some states or in allowance insome states. California was an allowancestate, and basically it meant thatif you wanted to, you could have threeseparate schools, like a school for Indiankids, a school for black kids, anda school for white kids.WAS: And this was, of course, overten years past Brown v. Board.LB: Yes, by the time I startedschool we were at or beyond theBrown v. Board cases. I went to aschool where 99 percent of the kidswere non-Indian. We were in a part ofthe county that was considered to beon the other side of the tracks and sothere were a few Hispanic kids, andWAS: Did your father counsel youabout dealing with discrimination ofthat kind?LB: My father, being an Indian,had a fairly easy attitude about it all.His response was, “Well, if it’s a placethey don’t want me, I probably don’twant to eat with them anyway.” Laterin life, I discovered that when he wastwenty-one, he made the mistake ofwalking into a white family establishmentin rural Colorado. His truck hadbroken down and he was looking forhelp to get back into town, and sixwhite men jumped him, stabbed himtwenty-seven times, and then shovedhim back out the door bleeding towalk back to the farm. So, I alwaysguessed from his perspective, having asign that says don’t come in here andyou walk away is better than goingin and being stabbed. Obviously, ofcourse, he survived the event and wenton to live many years after that.WAS: El Cajon Valley High, ironically,had the “Braves” as its name andan Indian caricature as a mascot?LB: Right. One of the things I didlater in my career that I didn’t knowI would be doing then was fightagainst the use of racialized mascotsin high schools, elementary schools,colleges, and professional sportingteams. It’s offensive and it’s an of-Published in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

fense that we don’t do with respectto other racial or ethnic groups. Wewere the El Cajon Braves. In themiddle of the school is this twentyfoot-tallcarved wooden Indian. Thefreshman project every year is tosand it down and revarnish it. Butthen, for all of the school materialswas the actual mascot character,which is a caricature . . . it’s this bigpot-bellied guy, with a big belly,short, big hooked nose, with a headbandwith an eagle feather, and it’sa broken eagle feather. In the Indiancommunity, you would never have abroken feather. There is a ceremonythat you use to send the feather on,and eagles were sacred animals thatcarry out prayers and our messagesto the Creator. So all of the anticsthat went on at that high school wereso offensive on so many levels that itwould be difficult without a sociologistto explain it all.WAS: How did you at the time,undoubtedly lacking at eighteen theservices of a sociologist, handle it?LB: I got through it fine. I was afairly well-accepted kid on campus,student government, cross-country,and all that good stuff. My youngerbrother comes along, in ’68 or ’69,when racial and ethnic groups inAmerica were starting to come intoour own, saying, you know, wewant equality. I was in college andmy younger brother sees me as thisradical young Indian. So he growshis hair out, to establish being Pawnee—somany in our tribe wear theirhair uncut for religious reasons. Healso went out for the cross-countryteam but got told by the school thathis long hair didn’t meet the school’sdress code and he was kicked offthe team. I protested and the schooladministration guy says, “Well,I’m not saying he can’t practice hisreligion; we’re just telling him hecan’t participate in extracurricularactivities.” My brother really wantsto participate in school extracurricularactivities and notices that the ElCajon Braves have a kid in a leatherbuckskin outfit marching in front ofthe band with a headdress and facepaint. So he says, “I’m an IndianThen the letter from Harvard comes.All of the major characters from literatureand film with the possible exception of AtticusFinch went to Harvard. So if you can affordit or not, you’re gonna go.and I’m the only Indian kid here. I’llgo out to be the band mascot.” Hegets told again by the administrationthat because of his hair he can’tparticipate as the band mascot. Theirony was an Indian kid with longhair can’t be the band mascot, sothat a non-Indian kid has to put on along wig and face paint to look darkskinned,wear the headdress, and bethe band’s “Indian mascot.” For therecord, the school still, all these yearslater, has the same mascot.WAS: With this background, howdid you go about choosing a collegeand end up in Santa Barbara?LB: I am the first member of myfamily to go to college, so I had absolutelyno idea how you even apply.I always assumed I would go to college.My buddy Jack Phelps workedin student government. His family isbig into education. He knows howto fill out the applications. He givesa sales pitch to me that UCSD is theplace to go. He helps me fill out applications,makes sure everythingis done right, and then we hop ina hot rod and go from El Cajon toUCSD at twice the speed limit and Istick my application in the door oneminute before the deadline. I havenever forgotten that I went to collegein great measure due to a very goodfriend who helped me through theprocess. He has no memory of havingdone it, and I told him it doesn’tmatter if you remember. I remember.WAS: After you got to UCSD,you transferred?LB: There were a couple of otherIndian kids on campus and weformed an Indian student organizationthat continues to exist today.I, however, fall in with a couple ofroommates into drinking and partying.By the end of my freshmanyear I am on academic probation.So I made the decision to transfer toSanta Barbara.WAS: Why did you chooseUCSB?LB: As you know, what a wonderfulplace to be! I got an alumniaward and the chancellor said shefound it difficult to explain what awonderful campus it was. So whenI gave my speech, I said, “Well, letme help you out. They are doinga retranslation of the Dead SeaScrolls and they’ve discovered Adamand Eve were actually students atUCSB.” UCSB for me made many,many changes. First off, I arrive oncampus and see signs for an organizationcalled Native AmericanAwareness, basically a group ofnon-Indian kids who were raisingmoney to bring water to the SantaYnez Indian Reservation, whichat the time had no running water.They raised several million dollarsto get water to the reservation and,I discovered forty years later, it’s agreat joke on the cycle of life as thetribe now sells bottled water as one oftheir enterprises. Now that there wasa Native student on campus, it wasPublished in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

decided I should probably lead a NativeAmerican Awareness Group, sowe took this body of energetic youngkids and started a tutorial programon the reservation at Santa Ynez.That morphed itself into a tutorialprogram in Santa Barbara where westudied with Native kids and discoveredvery quickly that the needs alsoincluded Hispanic, black, and whitekids. At one point we had forty collegestudents visiting elementary andsecondary students and helping themdo their work. After my graduation,that organization went on for at leasta decade.WAS: You also started a program,didn’t you, of outreach toprisoners at Lompoc Federal Prison?LB: Even though I was the onlyIndian student on campus, the greatjoke was I started an Indian organizationand elected myself presidentwith a unanimous vote. I becamevery well known for my outreachwork trying to get other studentsthere so when a letter came in fromLompoc addressed to any Indianat UCSB, it was put in my box. Theletter was from a group of Indian inmates.Because of the effect of federallaws on Indian reservations, manycrimes that wouldn’t be federal inany other area are when committedon an Indian reservation by an Indianagainst the personal property ofanother Indian.WAS: Had the Indian prisoners atLompoc created their own organization,prior to contacting you?LB: The prisoners were creating anorganization called The Tribe of FiveFeathers and looking to meet peoplefrom outside. I went up to the prisonthe first time and said, “What is itthat you need?” The guy said, “Weneed to meet people who didn’t commitcrimes. All of us inmates havecommitted crimes and we would liketo help prepare ourselves to go backinto the world by having conversationson a regular basis with peoplewho didn’t commit crimes.” Thismeant these guys were smart enoughto understand the need for the integrativeprocess back into society. Soprobably twice a month we wouldgo up to the prison and just spend acouple of hours talking with folks.WAS: You ended up teachingclasses, didn’t you, particularly helpinginmates learn how to have successfulparole hearings?LB: The inmates, like the otherracial and ethnic groups in theprison, had classes. I said, “What canI teach you? I’m twenty years old.”They said teach us what you know.I discovered that the parole rates forIndians were much lower than the parolerates for non-Indians. I believedthat was primarily because in theNative community we are taught thatwhen an Indian confronts someone ofauthority, you look at your feet. Takea humble position. I know the paroleboards were largely non-Indians andin the Anglo community folks likeyou to look them in the eye and tellthem your life plan. The majority ofthese folks are from reservations thathave weak educational backgrounds,and we taught them basic English,speech, and how to make a presentationto the parole board about yourlife plan. When you tell the paroleboard who knows it’s costing $2,000a day to keep you in prison, you havea life plan, they’re going to let you go.If you’re standing in front of themlooking at your feet, they are going tosend you back in.The parole rate for Indians increasedto the best in the prison. Thetwo or three years we were there, noNative inmates who were released onparole came back. The real power ofall of that came home to me a few yearsago when my supervisor at the Officeof Tribal Justice was giving a speechabout my work and he talked about theprison work and he said, “I don’t knowwhat you did in college, but Lawrence’swork was setting men free.”WAS: You also essentially createdyour own major at UCSB, inIndian Studies, didn’t you?LB: The university provided mefirst with the opportunity to do myown individual major, American IndianHistory and Culture. One of theother great things for me at UCSB isthat in my last quarter, two quartersinto a fifth year, I taught a seminar.The university had a rule that youcan teach if you had the highestdegree attainable in your field. Noone in America offered a master’s orPhD in Indian history at the time,so I actually taught while I was stilla student. A professor signed all ofmy grade cards, but it was my classand, again, a wonderful experience;I don’t know if you can get that at alot of other universities.WAS: Let’s talk about the journeyfrom your studies and activismat UCSB to Harvard Law.LB: I actually had a recommendationfrom the UCSB chancellor andwas highly honored that he wouldeven know my name, but to put a penon paper and recommend me. I appliedto a bunch of law schools. Then Istarted getting the letters back. I don’tget into Yale, don’t get into New Mexico—amarvelous story because theylet me teach there a few years later andI tell them, “It’s great you wouldn’teducate me, but you let me educateyour kids.” Then the letter from Harvardcomes. You look at films—whenpeople mention a law school, all of themajor characters from literature withthe possible exception of Atticus Finchwent to Harvard. So if you can affordit or not, you’re gonna go. It turns outI’m the ninth Indian to graduate fromthe school.Wilson Adam Schooley is a certifiedappellate specialist and trial lawyerwith Sullivan Hill Lewin Rez & Engelin San Diego. He has been active in barleadership locally and with the ABA, invarious divisions and sections includingIRR, for many years, and is also a professionalactor, adjunct law professor,and published photographer.Published in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Democracy atStakecontinued from page 20the campaign finance law that theSupreme Court gutted in Buckley.The rise of Super PACs and thedark money pouring into our electionshave laid bare the broken, unfairsystem the Supreme Court has left us.Now is our best chance in more than ageneration to lift the dark clouds andsecure a brighter future for Americandemocracy by empowering ordinarycitizens and truly honoring the principleof political equality.Adam Lioz is counsel at Demos, anational nonpartisan research and advocacyorganization, where he conductslitigation and policy analysis.Liz Kennedy is also counsel atDemos and focuses on money in politicsto increase transparency and accountabilityand to fight corruption of democraticgovernment.Introductioncontinued from inside front coverLess well known than the VotingRights Act is the National Voter RegistrationAct of 1993 (NVRA), whichwas passed in response to a very lowturnoutelection in 1992 and the recognitionby some members of Congressthat voter registration had become amajor barrier to electoral participation.The NVRA had been underappreciatedand little litigated since the earlyyears after its implementation, when anumber of states challenged Congress’sauthority to intrude upon the states’traditional province of regulating registration,even for federal elections. Thesechallenges were consistently and unceremoniouslyrejected.New life was breathed into theNVRA in 2012 by an en banc NinthCircuit decision in Gonzales v. Arizona,a case challenging Arizona’s proof ofcitizenship requirement for voter registration.By a large majority, the courtheld that requiring additional documentationbeyond the federal voter registrationform itself was a violation ofthe NVRA. (The issue of whether thestate could require proof of citizenshipto accompany the state registrationform was not presented.)The NVRA has also been invoked bythe Department of Justice (and privateparties) in a 2012 challenge to a purge ofthe voter rolls in Florida designed to getrid of supposed “noncitizens.” This processhas already been found to be riddledwith errors and brings back memories ofthe notorious “felon purge” in Floridain 2004, in which the state used a list thatincluded thousands of citizens with nocriminal record whatsoever.In addition, the NVRA is an effective,affirmative tool to enforce voterregistration at public assistance anddisability agencies, a requirement of thelaw that has been as widely ignored as itscompanion provision, “motor voter”—registration at motor vehicle agencies—hasbeen enforced. Restrictionson community-based voter registrationdrives also have been struck down underthe NVRA, as recently exemplified byan injunction issued against many provisionsof a Florida law imposing newrecordkeeping requirements and a fortyeight-hourdeadline for the submissionof voter registration applications.Clearly, the federal voting laws arepowerful weapons to combat manyof the state laws that have proven sopopular with regressive legislators(some armed with model bills writtenby the American Legislative ExchangeCouncil, better known as ALEC). Butfederal statutes are particularly potent inthe hands of the Department of Justice,which is charged with enforcing themand which is not encumbered by thenecessity of finding individual or organizationalplaintiffs who have been injuredby the state statutes. Unlike private litigants,the Department sues on behalf ofthe United States. Aside from this proceduraladvantage accorded the JusticeDepartment, states often find it morepersuasive to settle a lawsuit brought bythe Department than to face the mightof “The United States” in court.Some state laws and constitutionsalso provide an effective foilfor regressive laws. In Wisconsin, forexample, two different state courtsenjoined implementation of a particularlyonerous photo ID law, citing astate constitutional provision enunciatingan explicit right to vote.The job of fighting back against theproliferation of laws constricting votingrights has fallen largely to public interestlawyers and their organizations atevery stage. Lawyers write amelioratingamendments, talking points, andtestimony while the bills are pending,advocate for gubernatorial vetoes whenthey pass, and go to court when they aresigned. When we are lucky, we work intandem with the Department of Justice.When we are extremely lucky, we havethe assistance of law firms contributingtheir time and talent, as well as manyother resources that only law firms have.What the current period has shownus, once again, is that when faced witha crisis, the American people respond,taking action to rescue their rights.The increased public awareness of thefar right’s concerted attack on voting,awareness due in no small part to theincreased media attention to it, gives mehope that what we are seeing is merelyanother cycle in American political history,and it too shall pass. True, votes—and voters—will be lost, and we shouldnot trivialize this loss. But the more wepush back, and the more America’s lawyersjoin the fray, the more hope I have.Estelle H. Rogers is legislative directorof Project Vote, a national nonpartisanadvocacy organization devotedto increasing political participation intraditionally disenfranchised communities.She has been a voting rights lawyersince 2004. She is also one of the Sectionof Individual Rights and Responsibilities’delegates to the ABA House ofDelegates.Published in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion thereof 25 may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

NONPROFITORGANIZATIONU.S. POSTAGEPAIDAMERICAN BARASSOCIATIONAMERICAN BAR ASSOCIATION321 North Clark StreetChicago, IL 60654-7598Heroes of the Strugglefor Voting RightsBy Stephen J. WermielThe right to vote is a fundamental pillar of ourdemocratic system. But it is worth rememberingthat giving meaning to the right to vote has beena long, hard struggle to which many people have devotedtheir lives and for which some have lost their livesthroughout our history.For much of our history, the right to vote was limitedto property-owning and/or taxpaying white men. Women,African Americans, American Indians, and immigrantswere shut out in most parts of the country and in the Constitution,which largely left voting rights to the states.Hard-fought constitutional amendments provided aframework for change but were not always entirely successful.The Fifteenth Amendment was added to the Constitutionin 1870, prohibiting the denial of the right to vote tocitizens on the basis of their race. But ninety-five years later,Congress passed the Voting Rights Act of 1965 to deal with,among other things, state interference with the right to voteon the basis of race.The struggle to eliminate race discrimination in votinginvolved the lives of many people. John Lewis, now a memberof Congress from Georgia, helped lead the “FreedomSummer” efforts in 1964 to register African-Americanvoters in the South, along with Rev. Martin Luther KingJr. Many others joined in that struggle, risking life andlimb. One participant, John Doar, received the PresidentialMedal of Freedom from President Barack Obama in May.Head of the Justice Department Civil Rights Division formuch of the 1960s, Doar also played a key role in promotingvoting rights. In 1964, Doar helped investigate andprosecuted crimes related to the killings of James Chaney,Michael Schwerner, and Andrew Goodman, three civilrights volunteers who were killed while participating ina voter registration drive in Meridian, Mississippi. Doaralso represented the Justice Department’s effort to protectmarchers for voting rights from Selma to Montgomery,Alabama, in 1965.Another important figure, Nicholas deBelleville Katzenbach,who died in May, was deputy attorney generalfrom 1962 to 1965 and became attorney general in 1965.He is widely credited with helping to write the VotingRights Act of 1965 and then leading the Justice Departmentin its enforcement.The battle for suffrage for women was also a prolongedstruggle that culminated in approval of the NineteenthAmendment in 1920, prohibiting denial of theright to vote based on sex. The fight saw many suffragistleaders devote significant portions of their lives to thecause. From the convening of a now-famous rights conventionin 1848 in Seneca Falls, New York, by ElizabethCady Stanton and Lucretia Mott to the final push forthe Nineteenth Amendment seventy years later by AlicePaul and Carrie Chapman Catt, leaders sacrificed to winthe right to vote for women.There are heroes in other constituent groups as wellwho have fought to secure the right to vote for successivepopulations of immigrants and for American Indians.Even 225 years after the Constitution was written, thestruggle is not over and new heroes for voting rights areneeded and are emerging in each generation.Stephen J. Wermiel, who teaches constitutional law atAmerican University Washington College of Law, is chair ofthe ABA Section of Individual Rights and Responsibilities.Associated Press, APPublished in Human Rights, Volume 39, Number 1, Winter 2012. © 2012 by the American Bar Association. Reproduced withpermission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by anymeans or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.