The Equal Democracy Project at Harvard Law School

Fighting to dismantle the political barriers to our currently unequal democracy

Equal Democracy Project

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A Cry for Help: Civic Education in Today’s America

 By Patrick O’Connor | April 18, 2021

 

There is a “deep flaw” in our nation’s education policies. “American democracy is in peril.” These are two statements made by U.S. District Court Judge William Smith in his decision to reluctantly dismiss a class action brought on behalf of Rhode Island students to establish public education as a right under the U.S. Constitution. The plaintiffs’ argument in Cook (A.C.) v. Raimondo,[1] is that the Constitution contains an implied right to an education that adequately prepares students to become capable citizens and participate in democracy. The lawsuit claims that, as a result of their failure to provide this necessary basic education, state officials, including then-Governor Gina Raimondo, have violated the Equal Protection Clause of the Fourteenth Amendment.

The largest obstacle for the Cook plaintiffs is the U.S. Supreme Court’s 1973 holding in San Antonio Independent School District v. Rodriguez.[2] In Rodriguez, the Court declared that the Constitution does not guarantee equality of education. The Rodriguez case involved a challenge to the school district funding system in Texas. Because the funding system was primarily based on local property taxes, it resulted in significant disparities and state funding failed to equalize per-pupil expenditures. In ruling that education was not a “fundamental interest,” the Supreme Court rejected the claim that the funding system must pass a strict scrutiny standard of review.[3] The Rodriguez decision seems to have foreclosed any educational equity challenges in federal courts. In his order dismissing the Cook case, Judge Smith noted that the “arc of the law in this area is clear.”

Dissenting opinions in Rodriguez by Justices Thurgood Marshall and William Brennan argued that there is an implied right to education in the Constitution because education is fundamental to the exercise of other constitutional rights—namely the First Amendment right to freedom of expression—and the fundamental interest in voting. The plaintiffs in Cook invoke this reasoning by arguing that students require an adequate education to “function productively as civic participants capable of voting, serving on a jury, understanding economic, social, and political systems sufficiently to make informed choices, and to participate effectively in civic activities.”[4]

It remains to be seen how the Cook plaintiffs will fare on their appeal to the First Circuit, but there is undoubtedly a need for a newfound priority on civic education by the States in the spirit of Cook and Justice Marshall’s dissent. As Judge Smith wrote, Cook is “a cry for help from a generation of young people who are destined to inherit a country which we—the generation currently in charge—are not stewarding well,” while concluding that “[h]opefully, others who have the power to address this need will respond appropriately.”

The State of Civic Education

In the United States, the federal government funds STEM education at an annual rate of $50 per student. Civics and history? Five cents. And the disparity is not because the latter contains little room for improvement. That three out of five Americans adults cannot name the three branches of government is concerning. And that only one-third could pass the civics test for naturalization generates many thoughts.

One reaction to this clear need for more civic education is the nearly twenty states that have implemented a civics test as a requirement for high school graduation—usually in the form of multiple-choice questions taken from the USCIS naturalization test. While necessary, traditional civics knowledge is certainly not a sufficient condition for generating an informed citizenry and building a strong democracy. Something more is needed: perfect scores on civics exams may do little to stem the trends of asymmetric partisanship and hyper-polarization, virulent discourse, “Big Lies,” and political discussions often void of substantive policy issues—by voters and candidates, alike. More worrying than citizens forgetting the specific First Amendment freedoms is a declining trust in government and a lack of engagement in civic life—or that the Economist Intelligence Unit rates the United States as a “flawed democracy,” largely as a result of low ratings in the “functioning of government” and “political culture” parameters.

Civic education must teach students how government works. But it should also engage students in their community and help all students feel equipped to participate in civic life—ideals not achievable solely by fact-based multiple-choice testing. To that end, the Brown Center on Education Policy at the Brookings Institution has recommended ten proven practices that are critical for high-quality civic education—with only one relating to curriculum content.

In a recently released report, titled “A Roadmap to Educating for American Democracy,” the Educating for American Democracy Initiative calls for a shift from “breadth to depth” in civic and history K-12 education with an emphasis on a shared and ideologically pluralist national conversation. This roadmap is neither content-neutral nor fact-based: rather, it seeks to promote student inquiry through conceptual “driving questions” and interpersonal civic engagement. Principles such as “civic friendship” and “reflective patriotism” attempt to promote honest, productive engagement and a reasonable assessment of history, respectively.

A model for civic education, and an approach for incorporating contentious topics, can be found in Germany’s nonpartisan Federal Agency for Civic Education. Germany established regional civic education offices to facilitate “citizenship education” and provide information on a range of topics. A principle of the German model is that those topics that are most “political” should be the topics most protected from political interference in the school curriculum.

A Recent Example

Massachusetts, as the first state to require middle school and high school students to complete a civics project as part of its curriculum, has taken a positive step towards achieving deeper, community-focused civic education. The Massachusetts bill, An Act to Promote Civic Engagement, passed in 2018, bolsters the teaching of traditional civics topics, such as the founding documents, but it moves beyond book learning to promote the development of skills required of capable citizens.

The bill, with its focus on student-led projects, implements the “action civics” idea. Action civics is an approach by which students identify an issue that impacts their community and then develop an action plan to address the problem. At its root, action civics takes a participatory view of democracy and identifies that students learn best by doing. Action civics is one of the Brown Center’s proven practices and the primary catalyst of the civic learning approach proffered by Generation Citizen, which was part of the coalition supporting the Massachusetts bill. The action civics approach aligns civic learning with the broad push for the development of “21st Century Skills” in K-12 education. Examples include neighborhood sanitation in New York City, as well as Anaheim middle school students improving the quality of water in school drinking fountains.

Subsequent to the passage of the bill by the state legislature, the Massachusetts Department of Elementary and Secondary Education (DESE) released a guidebook which included examples of potential civics project topics for schools, such as youth vaping, transportation, and local police accountability. While implementation primarily occurs at the local level, state support is evident, and necessary, as there will likely be pushback regarding topics some deem too “political.” Other elements of the 2018 bill include the creation of a Civics Project Trust Fund, and competitions at the middle school (statewide civics challenge) and high school (voter registration) levels.

A recent report by DESE and another in-depth report issued by the Office of State Rep. Andres X. Vargas, provide key takeaways and suggested recommendations about the initial status of the Massachusetts civic education legislation.[5] Common findings, among teachers and students, included a broad interest and belief in the importance of civic learning, but varied levels of awareness of the new civic education standards. Unsurprisingly, and understandably, the COVID-19 pandemic has had implications on the implementation and current priority level of civic education. Recommendations for improvement centered around more professional development; increased involvement/support at the school administration level; equitable distribution of programmatic resources; the incorporation of more democratic classroom practices; and the development of holistic, portfolio-based assessment. Additionally, a recommended idea is a “civics seal” award for exemplary school districts to incentivize high-quality civic learning programs.

After completing an action civics project, nearly all surveyed students felt more knowledgeable about the purposes of government and more aware of the ways they could participate in civic society. Students also reported a feeling of greater connection to their school and community after completing a project. Importantly, there were strong findings that students felt more capable of distinguishing opinion from fact and more confident in engaging in civil discussion with those with whom they disagree. Teacher responses about their students also reflected these sentiments. Additionally, many teachers were cautiously optimistic about a renewed priority on civics and social studies, including the development of a statewide assessment, as this would lead to more (1) resources and support on the one hand, but on the other, (2) potential pressure to “teach to the test” combined with (3) a tension between standardization and authentic, student-led civic learning. The recommended portfolio assessment may help alleviate this pressure.

Democracy Requires Civic Education

Young people are becoming more civically engaged, according to traditional measures such as voting: estimates show that up to 56% of eligible voters, ages 18-29, voted in the 2020 presidential election, an increase of about ten percentage points from 2016. Youth advocates and organizers are also increasingly involved in issues that they care most about, including climate change, gun control, and racial justice. The COVID-19 experience is also likely to have generational impact. In an increasingly complex world, there is a clear need to provide a quality civic education to all students.

As students advance in school, they become increasingly “bored out of their minds.” The correct antithesis for boredom in schools should not be fun but rather authentic engagement. More traditional approaches to civic learning will do little to alleviate the feeling held by many students that school is utterly disconnected from their life. It is much easier to endure difficult assignments and aspects of life when there is a broader purpose behind one’s work. A civic education that connects to students’ lives can encourage them to explore their own ideas, find out how they can uniquely contribute to their community and, in the process, provide a greater context to the rest of their academic learning.

Over a century ago, John Dewey noted the familiar notion that for a government by way of popular suffrage to be legitimate, it must rest upon the internal authority of an educated populace. Dewey goes beyond that explanation for the importance of education to a democracy, describing democracy as “more than a form of government; it is primarily a mode of associated living, of conjoint communicated experience.” Civic education is a necessary component of what should be goals of quality education: furthering the self-actualization process, strengthening democratic participation, and increasing social mobility.

Despite rejecting education as a fundamental right in Rodriguez, the Supreme Court has consistently valued its importance, emphasizing that education provides “fundamental values necessary for the maintenance of a democratic political system” and “the very foundation of good citizenship.”[6] And Justice Sandra Day O’Connor, the last member of the Supreme Court to have served in a state legislature, founded iCivics, a nonprofit dedicated to providing high-quality, engaging civic learning for students. Nearly two-thirds of state high courts have stated that preparation for a “capable citizenry” is a primary purpose of the education clause of their state constitutions. It seems, in light of judicial reliance on the political process to find solutions, that any principled constitutional theory should include the right to an education adequate enough to exercise one’s constitutional rights and participate in civic society.

The current energy around reimagining civic education is indicative of the state of our nation. Across the country, numerous sectors and institutions recognize that something must be done to prepare students to think critically, improve our political climate, and bring truth to the aphorism that democracy is a verb. However, the what and how remain contentious along ideological lines—prompting the question of whether we disagree on our views of history and civic ideals because of our politics, or vice versa. Difficult conversations and challenges remain. Nevertheless, the momentum is encouraging, but it is also incumbent on everyone to realize that we are all teaching the youth and that they are always watching. We should keep the following in mind:

No written word, no spoken plea can teach our youth what they should be.

Nor all the books on all the shelves, it’s what the teachers are themselves.

Schools are ubiquitous and underutilized assets. Time will tell if the generation(s) currently in charge can get out of their own way and strive to educate the youth “not for the existing state of affairs but so as to make possible a future better humanity.” To paraphrase Horace Mann—as the kids are now, so will America soon be.

Patrick O’Connor is a 1L at Harvard Law School.

For more information on civic education:

https://generationcitizen.org/

https://www.icivics.org/

https://circle.tufts.edu/our-research/equitable-k12-civic-learning

https://www.civiced.org/

https://www.civxnow.org/

https://www.educatingforamericandemocracy.org/

[1] 2020 WL 6042105, C.A. No. 18-645 WES

[2] 411 U.S. 1 (1973).

[3] As a result of Rodriguez, education equity advocacy has been focused on state legislatures and litigated in state courts. Judge Jeffrey Sutton of the Sixth Circuit observes that the Rodriguez decision may have been a net positive as it resulted in school funding reform at the state-level, as opposed to a national approach. Today, all states now have some form of education funding equalization legislation, and the Supreme Court of Texas ruled that the system of school funding at issue in Rodriguez was unconstitutional under the Texas Constitution. Much inequity remains, particularly along racial lines. For a critical history of the case and the effects of inequality on students, see “The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Education Opportunity” (Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson eds., 2015).

[4] In addition to the Equal Protection claim, Cook implicates Article IV, Section 4 of the Constitution (guaranteeing to every state “a republican form of government”). In a 2018 law review article, Professor Derek Black notes that during Reconstruction, the U.S. government used the guarantee of republican government in Article IV to force Southern states to guarantee public education in their state constitution as a condition of approval for acceptance back into the Union, and continued to do so even after ratification of the Fourteenth Amendment. Professor Black argues that this creates a stronger substantive argument to establish a fundamental right to education than that of the Equal Protection claim.

[5] Note: The author previously worked as a fellow for Representative Vargas on matters unrelated to civic education.

[6] Plyler v. Doe, 457 U.S. 202, 221 (1982); Brown v. Board of Education, 347 U.S. 483, 493 (1954).

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H.R. 1, Voter ID, and The Myth of Voter Fraud

By Catherine Walker-Jacks | April 11, 2021

 

H.R. 1—The For the People Act—is a bold piece of proposed legislation that would reform essential aspects of the American political system across campaign finance, voting rights, election security, ethics, and more. To strengthen voting rights, the bill aims to reduce many barriers to the ballot box, including by addressing states’ voter identification requirements. According to the bill’s drafters, identification requirements are “excessively onerous” and “disproportionately burden” minority communities. To mitigate these burdens, the legislation would require that all states permit eligible voters in federal elections to use “sworn written statement[s] to meet identification requirements for voting.” For voters who might have difficulties meeting their state’s identification requirements—which in several states are quite strict—H.R. 1 would provide an alternate means to cast a ballot on election day. This is a big deal.

But while many of H.R. 1’s provisions—including its proposals for nonpartisan redistricting committees and a public financing system—have garnered considerable coverage, its voter ID provision appears to be under-discussed. In fact, major publications’ summaries of H.R. 1 fail to even mention the provision, while commentary from opponents is often misleading. At the same time, state legislatures across the country are considering hundreds of new measures that may suppress the right to vote, including new voter ID restrictions, making this particular provision of H.R. 1 increasingly important.

Broadly, both H.R. 1 and this recent flurry of state legislation ought to spark a renewed conversation on why we have voter ID laws—which have been termed a “solution in search of a problem”—in the first place. Indeed, while proponents argue that voter ID laws are necessary to combat voter fraud, studies have consistently shown that fraud is extremely rare. It is particularly important to scrutinize the justifications for these laws in this moment, because, while Americans oppose many voting restrictions, voter ID laws actually continue to have public support, perhaps because many also believe the unfortunately widespread myth that voter fraud is common. This myth is dangerous, as it serves to justify laws that place minority communities at risk of disenfranchisement.

Contextualizing H.R. 1

Given what appears to be a relative lack of detailed coverage and analysis into H.R. 1’s voter ID provision, it’s worth noting what the legislation actually would—and would not—do in this area. Understanding the legislation’s potential effect requires a closer look into the patchwork of voter ID laws across the country. Currently, at least 36 states have laws that request or require some form of identification for in-person voters. Among these states, requirements vary considerably: laws differ both in terms of the forms of ID requested and the options available to eligible voters who lack ID.

Specifically, some voter ID states request only non-photo identification, like a bank statement or utility bill, while several other states require specific forms of photo ID. Among photo ID states, there is also variation in what forms of ID are accepted, including whether expired IDs and student IDs are permitted. Several states provide voters who fail to bring a requested form of ID with the option to cast a ballot that will be counted without further action on their part. For example, in states like Delaware, voters lacking ID may instead sign an affidavit of identity, while in a few states, poll workers or other voters may vouch for one’s identity. Conversely, in states with strict photo ID laws, such as Georgia or Indiana, an ID-less voter’s sole option is to cast a provisional ballot, which will only be counted if the voter subsequently provides the county election office with a requisite form of identification within a few days of the election.

Contrary to the assertions of some of H.R.1’s opponents, the legislation would not ban any of these voter ID laws. Instead, H.R.1 would mandate that each state provide an additional, complementary procedure for voters who lack ID: the option to complete a sworn affidavit of identity, signed under a penalty of perjury, and then cast a regular ballot. This option would be available to voters in all states for federal elections, leaving states’ procedures for their own elections untouched. Other blanket statements about H.R.1’s effect—such as Rep. Steve Scalise’s (R-LA) assertion that it would render each states’ voter ID laws “unenforceable and useless”—also fail to account for the bill’s actual effect, given how much each states’ requirements vary. Indeed, some voter ID states have already codified H.R.1’s proposed procedure, or something similar to it, for all of their elections. One of those states, in fact, is Rep. Scalise’s home state of Louisiana.

In states with stricter voter ID laws, however, H.R. 1 would mark a material change from the status quo, permitting all eligible voters to be sure that their votes will be counted on election day, though only for federal races. It could also make a substantial difference for voters in states like Florida, which provide an affidavit option for voters lacking ID, but one that requires signature matching for ballots to be counted, a practice that has been shown to lead to disenfranchisement. Additionally, having one standardized procedure available to voters in all states could reduce confusion about ID requirements among voters and poll workers and thus help reduce the risk of inadvertent disenfranchisement.

Given that many states are further restricting their voter ID laws—such as Arkansas, which recently removed its affidavit alternative, or Wyoming where the state’s first voter ID law was just signed into law—the potential impact, and importance, of H.R. 1 is growing by the day.

Voter ID Laws – A Solution in Search of a Problem?

While voter ID laws may feel like a mainstay of our political system, widespread voter identification requirements are actually a relatively recent phenomenon. Prior to the 2000 election, most states requested identification only from certain voters (i.e., first-time voters who registered by mail), while a few states had permissive non-photo ID laws. It was not until 2006 that a state, Indiana, required a voter to produce a government issued photo ID as a condition to voting. The Supreme Court upheld this law in Crawford v. Marion County Election Board, after plaintiffs, including the state’s Democratic Party and interest groups representing minority and elderly voters, argued that it unconstitutionally burdened the right to vote. The Court’s decision in Crawford and its subsequent decision in Shelby County v. Holder, which gutted the Voting Rights Act by removing the requirement that certain states receive federal preclearance before changing their election laws, helped to pave the way for the proliferation of voter ID laws across the country.

Proponents of voter ID laws argue that they are necessary to ensure the integrity of elections by preventing voter fraud. But, as voting rights advocates have argued for years, study after study has shown voter fraud is incredibly rare. Indeed, a comprehensive study found that between 2000 and 2014, there had been at most 31 credible incidents of voter fraud out of more than 1 billion ballots cast. The Brennan Center has also conducted a study on the matter and found incident rates of fraud between 0.0003 percent and 0.0025 percent, meaning that an American is more likely to be “struck by lightning than that he will impersonate another voter at the polls.” Its report also concluded that most reported incidents of voter fraud are actually traceable to other sources, such as “clerical errors or bad data matching practices.”

Courts too have said that in-person voter fraud is extremely rare. For instance, in Veasey v. Abbott, a case concerning Texas’ photo ID law, the Fifth Circuit found that there were “only two convictions for in-person voter impersonation fraud out of [twenty] million votes cast in the decade leading up to” the law’s passage. Even the Supreme Court in Crawford noted that the record in that case “contains no evidence of any [in-person voter impersonation] fraud actually occurring in Indiana at any time in its history.” Meanwhile, reports from the 2016 and 2020 elections support the conclusion that voter fraud is rare.

Nonetheless, many Americans have been led to believe that voter fraud is a persistent problem. As the events of January 6, 2021 underscore, the myth of voter fraud can lead to dangerous results. For the lawmakers who push voter ID laws—overwhelmingly Republicans—arguments about supposed voter fraud can serve as purported justifications that mask true motivations for such laws, such as the hope of gaining a partisan advantage by suppressing the votes of minority communities. In recent years, several Republican legislators have actually admitted the potential of using such laws for political gain by adding a barrier to the ballot box, including the former Pennsylvania house majority leader who stated in 2012 that a new voter ID law would “allow Governor [Mitt] Romney to win the state of Pennsylvania.”

Indeed, voter ID laws have been shown to disproportionately burden certain voters, placing them at higher risk of disenfranchisement. Millions of Americans, especially people of color, people with disabilities, and low-income voters, do not have the forms of ID required for voting. A 2006 study by The Brennan Center concluded that “up to 11 percent of U.S. citizens—twenty-one million eligible voters—did not have government-issued photo IDs . . . includ[ing] 25 percent of African-Americans, 18 percent of seniors sixty-five and over, and 15 percent of those making less than thirty-five thousand dollars a year.” In contrast, the study found that only eight percent of white voting-age citizens lacked government-issued ID. Several studies, including a 2014 GAO study and a comprehensive study from 2020, have shown that these burdens can translate to reduced turnout among minority voters. The myth of voter fraud thus poses a dangerous threat to democracy by serving as a justification for laws that may deprive many citizens of the right to vote.

The Future of H.R. 1 and Voter ID

Given Democrats’ slim majority in the Senate, current filibuster rules, and lack of Republican support, there unfortunately appears to be a difficult road ahead for H.R. 1, at least as it is currently written. Simultaneously, as noted, many state legislatures are considering, or have already passed, numerous new restrictions on the right to vote. And while there have been calls to resist efforts to dilute H.R. 1, one state’s recent experience adopting a photo ID law suggests that compromise could lead to at least some progress in mitigating the burdens of states’ most stringent requirements. In Kentucky, where the Secretary of State was elected on a promise to enact photo ID requirements and Republicans have a majority in the state legislature, deliberation and compromise with Democrats and voting rights advocates helped turn what might have become one of the strictest photo ID laws in the country into one of the more reasonable. Indeed, although the new legislation requires that voters provide photo ID, the state accepts more types of photo IDs than many other states and also allows voters who are unable to obtain photo ID to instead provide one of several forms of non-photo ID, complete an affidavit, and cast a regular ballot. Perhaps, then, Democrats in Congress could and should follow in the footsteps of Kentucky, and in the interim work to pass a more targeted measure to help alleviate the harms of the country’s strictest photo ID laws.

Broadly, elected officials committed to strengthening democracy must actively work to combat the myth of voter fraud—including by holding accountable those in power who perpetuate these falsities. As was highlighted by the recent report that the Trump administration’s false fraud claims helped lead to Georgia’s new restrictive voting law, until the record is set straight, this myth will continue to have damaging effects to our democracy.

Catherine Walker-Jacks is a 1L at Harvard Law School. 

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Issue Explainer: The Filibuster

 

By Christina Coleburn | March 21, 2021

 

As legislative battles rage in Congress, discussions about the future of the Senate filibuster have taken center stage. With bills quickly advancing from the House to the Senate under unified Democratic control, political observers are debating whether to keep, weaken, or nix the Senate filibuster altogether. This tool could make or break — and as it stands today, break — ambitious laws, from voting rights, to infrastructure, to immigration from coming to fruition. Through the filibuster, a few senators whose views represent a minority of voters, could effectively kill legislation that would impact and is supported by millions. Under this backdrop, the debate about filibuster reform is experiencing a revival.

What is the Filibuster?

The Senate defines the “filibuster” as an “informal term for any attempt to block or delay Senate action on a bill or other matter by debating it at length, by offering numerous procedural motions, or by any other delaying or obstructive actions.” According to Professor Kenneth Mack, “what we call the filibuster is simply an interpretation” of the Senate’s Rule 22, which structures Senate motions and dates back to 1806. But the practice has changed drastically since then. 

In 1917, the Senate first imposed cloture, a rule that permitted a two-thirds majority to end a filibuster and bring the legislation to vote. Cloture is currently the only option through which the Senate can put a time limit on a bill’s consideration. The cloture rule was modified in 1975 to permit a narrower three-fifths majority, meaning 60 Senators, to terminate a filibuster. While only 51 votes – a majority – are technically needed to advance uncontroversial legislative bills (i.e. those advanced via “unanimous consent” or passed through the budget reconciliation process), the combination of the filibuster and cloture rules creates a high barrier for passage for most legislation: most bills considered in the Senate will need the support of 60 senators to cease debate and reach a vote. 

If even one senator acts to extend debate on a bill, then the votes of 60 members are required to move from debate to vote. Any senator can trigger a filibuster after notice is given, usually first to the party leadership. Simply standing up and saying “I object” when fellow senators attempt to advance the legislation is the most common formal step. While the triggering senator could speak about the reason for initiating the filibuster, the senator is no longer required to do so. The filibuster is a powerful tool because without enough votes for cloture, even one senator who uses superfluous motions or refuses to yield the floor during debate can kill legislation. 

How Has the Filibuster Been Used Historically? 

While the filibuster took the spotlight in the hit 1939 film “Mr. Smith Goes to Washington,” it has come a long way since a political newcomer utilized it to kill a corrupt senator’s grifting bill. In real life, it has been leveled by the Senate’s minority party against the majority on a host of issues ranging from global affairs and national security to presidential conduct and domestic policy. 

The Senate filibuster was not devised by the Founding Fathers, nor did they include the existing iteration of the filibuster in the Constitution. The Founding Fathers were, however, aware that the Constitution could embolden a persistent minority to prolong legislation through refusing to vote or holding repeated roll calls, according to political scientist Gregory Koger. Despite this and the fact that filibustering also occurred during the Continental Congress, the Founders’ views on the practice ranged from indecisive to pessimistic. 

While James Madison referred to quorum-breaking favorably as it pertained to the Virginia Legislature in August 1787, he later expressed negative views on the practice in his famous writings. Madison was apprehensive about the ability of a minority to block the majority’s will in Federalist Paper 58, writing that such a practice “leads more directly to public convulsions, and more ruin of popular governments[.]” He added that it could “extort unreasonable indulgences” and potentially compromise the “fundamental principle of free government[.]” George Mason, who was more optimistic about the effect of the minority’s blocking procedures, noting that fear about their occurrence could invigorate the governing process, nonetheless admitted that filibusters could prompt “inconveniences.” 

In the modern era, the filibuster was unsuccessful in reversing the censure of former President Andrew Jackson, but successfully delayed the arming of merchant ships against German U-boats and defeated the ratification of the Treaty of Versailles during World War I. Historically, the filibuster played an ugly role in upholding slavery: Professor Mack notes that one of the filibuster’s “principal uses in the nineteenth century was as a means of protecting the interests of slaveholders.” It was also infamously weaponized by Southern conservative Democrats of the 1950s and 1960s era to preserve discriminatory laws, like Jim Crow laws, as it was prominently invoked to delay the passage of anti-lynching, integration, civil rights, and voting protection bills. 

Why is the Filibuster Controversial?

Proponents of the filibuster contend that it protects the minority party from majority tyranny and encourages productive debate that stifles poor legislation. Critics counter that while this point may be theoretically salient, it flounders in practice under the weight of partisan gridlock and obstructionist realities. Rather than boosting fruitful debate to pass meaningful laws, skeptics assert that the filibuster is abused to yield the opposite result — suppressing debate and preventing popular bills that benefit Americans from seeing the light of the Senate floor. 

These types of pro-filibuster arguments are viewed as bad faith to filibuster opponents, juxtaposing their stated concern for the voice of the minority with policies that suppress the voices of voters who determine whether a party will ultimately be in the minority. As political scientists Gregory J. Wawro and Eric Schickler, wrote: “With party lines now corresponding to policy preferences (and ideological groupings) more tightly than in much of American history, the filibuster has become more clearly identified as a key tool of the minority party rather than as a tool used by various types of minorities.” This point is especially poignant as restrictive voting measures, some which have outsized impact or directly target minorities, have been proposed.

And the stakes are high: look to the contentious fight over voting rights currently waging at the state and federal level. State legislatures recently proposed roughly 250 voting restriction laws. These actions are a response to falsehoods about widespread voter fraud meant to cast doubt on the legitimacy of the 2020 election, which election officials dubbed “the most secure in American history.” An Arizona bill goes as far as to allow the legislature to overturn presidential election results cast within the state, giving it the power to invalidate the will of Arizonans and their collective Electoral College power. Reflecting the impact of state efforts to ‘protect the vote,’ Arizona State Rep. John Kavanagh (R-D. 23) told reporters that “Republicans are more concerned about fraud, so we don’t mind putting security measures in that won’t let everybody vote — but everybody shouldn’t be voting… we have to look at the quality of votes.”

More broadly, supporters of ending or reforming the filibuster point to the popularity of legislation that Democrats – the Senate majority – have proposed, and that Republicans have vowed to oppose on principle. They cite the $1.9 trillion Covid-19 relief bill that passed in March as a fresh example. Its provisions — from $1,400 stimulus checks, funding for K-12 schools, larger tax credits for families, and aid to local and state governments — earned high approval ratings from Americans (66% of voters thought the legislation would help the economy, which the pandemic seriously harmed, with especially stark consequences for Americans who are low-income, young or new to the workforce, of color, and women). Zero congressional Republicans voted for the bill, despite support from 41% of Republican voters. A blow against the argument that filibusters encourage productive debate, 57% of Americans thought that the Biden administration worked with congressional Republicans in good faith while 55% said the GOP did not work with the White House in good faith. They also note the huge discrepancy between the scope of the December 2020 relief bill compared to the March 2021 legislation to argue that the filibuster stands in the way of laws that could improve American lives in an unprecedented public health crisis.

How Does the Filibuster Affect Democracy? 

The filibuster exacerbates the tension between the will of most Americans and the will, or potential obstruction, of a few elected officials. The House has recently advanced ambitious bills to reform campaign finance and policing, provide a path to citizenship for Dreamers, and quell LGBTQ+ discrimination, but they have stalled in the narrowly divided Senate where opposition is fierce within the minority party. The bills at issue carry could have changed millions of lives. The filibuster, by implication, is a Senate institution that functions to obstruct representative democracy. 

Polling shows that a majority of Americans support this legislation advanced by the congressional majority (currently, Democrats). Nine months prior to the House advancing the American Dream and Promise Act, a Pew poll found that 74% of Americans, including 54% of Republicans, favor granting permanent resident status to immigrants who came to the United States as undocumented children. Majorities also favor anti-discrimination protections for transgender people: a June 2020 Kaiser Family Foundation poll reported that 89% of Americans and 77% of Republicans think it should be illegal to fire or refuse to hire transgender people. From the same poll, 88% of Americans and 79% of Republicans believe it should be illegal for doctors to refuse to treat transgender patients.  

What Comes Next?

While the filibuster appears secure for now based on the reluctance of Senators Joe Manchin (D-WV) and Kyrsten Synema (D-AZ) to outright eliminate it, ideas for reform have gained traction among many Democrats, including former President Barack Obama, Senate Majority Leader Chuck Schumer (D-NY), and Democrats across the ideological spectrum from moderate Senators John Tester (D-MT) and Amy Klobuchar (D-MN) to more progressive Democrats like Senator Elizabeth Warren (D-MA). President Joe Biden has also joined the growing chorus for reform or willingness to consider it in calling for a “talking filibuster” in a March 16 interview. His statement indicates an increased willingness to consider modifications to the rule and follows White House Press Secretary Jen Psaki’s comment that Biden is “open to hearing” ideas on the subject. Although the reform process could be complicated, options are on the table. As examples of potential reforms, (1) senators who refuse to vote for cloture could trigger a suspensatory rather than a total veto or (2) the Senate could change supermajority voting rules. 60 votes are currently needed to move a debate to a vote. Lowering this threshold or returning to a talking filibuster, which forces senators to hold the floor and speak while they prolong the vote to end debate, are potential changes that could be explored.

On the other side of the aisle, Senate Minority Leader Mitch McConnell (R-KY) promised “scorched Earth” if the filibuster process were to be changed, reviving memories of obstructionism and skepticism that tensions could possibly escalate further after his tenure as majority leader. McConnell previously resisted calls in 2018 from House Republicans to nix the filibuster, foreseeing that the GOP would not always hold the Senate majority. With that prediction now a reality, it remains to be seen whether Democrats will unify to reform the filibuster or allow it to remain in place barring further developments.  

Christina Coleburn is a first-year student at Harvard Law School. Follow her on Twitter: @C_Coleburn.

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H.R. 1: Congress’s Plan for a Stronger Democracy

 

By Zachary Sorenson | March 7, 2021

 

Late Wednesday night, the U.S. House of Representatives passed H.R. 1, the “For the People Act,” for the second time in as many years. The nearly 800-page bill includes a sweeping set of voting rights, campaign finance, and good government reforms. And between the Covid-19 pandemic, the violent response to the 2020 election, and the upcoming post-Census apportionment, it couldn’t come at a more pivotal time for voting rights and election access and security.

Even after the remarkable success of the 2020 election amidst unprecedented challenges, legislatures in a majority of states have already introduced legislation this year to limit vote by mail and voter registration opportunities, purge voter rolls, and impose voter ID restrictions. And these new laws are in addition to attempted challenges to the 2020 outcome in both state legislative chambers and the courts.

While federal legislation is of course unable to prevent or mitigate all of these attacks on voting rights and access, H.R. 1 would still make a crucial difference.

What’s in the bill?

H.R. 1 includes a sweeping array of changes to federal election and campaign finance law, as well as ethics and lobbying rules (several of which have previously been introduced as standalone legislation). Perhaps unsurprisingly, H.R. 1’s provisions also cover the full range of the Equal Democracy Project’s issue areas:

Voting Rights

The United States is alone among major democracies in putting the onus on citizens to affirmatively register to vote, and as a result, around a fifth of eligible voters have not registered. H.R. 1 would address this shortfall by requiring states to implement automatic voter registration for federal elections and to allow online voter registration as well as same-day registration on Election Day and early voting days.

H.R. 1 also restricts purging registered voters from rolls (an estimated 17 million voters were purged between 2016 and 2018) by prohibiting purges for failure to vote and increasing notice requirements for voters who are removed.

Finally, it guarantees federal voting rights for citizens with prior felony convictions who have completed incarceration (Rep. Cori Bush’s amendment to also restore voting rights to those currently incarcerated was not successful).

Notably, though, H.R. 1 would not restore the full protections under Section 5 of the Voting Rights Act that were gutted in the Supreme Court’s Shelby County v. Holder decision—Democrats have introduced separate legislation to do that—but it does include a findings section reaffirming Congress’s commitment to do so.

Money in Politics

In the aftermath of Citizens United, H.R. 1 targets “dark money” in politics by requiring organizations making significant campaign contributions to disclose their donors and further restricts coordination between campaigns and outside groups. It also seeks to improve transparency of online advertising by requiring online platforms to create public databases of political ad purchases.

More ambitiously, H.R. 1 also proposes a publicly financed small donor matching program for House and Senate candidates who opt in and agree to lower contribution limits and other restrictions. Donations of up to $200 would be matched at a 6:1 rate and would be funded by imposing a surcharge on corporate settlements with the government, not by taxpayers (this is a change from the previous version of the bill).

Finally, H.R. 1 attempts to reduce the gridlock at the Federal Election Commission (FEC) by reducing the number of commissioners from six to five (with no more than two from each party to ensure ties can be broken) and giving greater enforcement authority to the Commission’s nonpartisan staff.

Gerrymandering

H.R. 1 seeks to end gerrymandering by requiring states to set up independent commissions to apportion districts for House elections, with map-drawing procedures designed to ensure fairness and membership requirements to prevent the process from being dominated by any single party.

Electoral Reform & Administration

H.R. 1 would require states to increase access to voting by requiring early voting and no-excuse absentee voting for federal elections. It also seeks to improve election security by requiring paper ballots, designating election systems as critical infrastructure, and authorizing funding to replace equipment and implement risk-limiting audits.

Civic Engagement

Many of H.R. 1’s provisions described above would help boost civic engagement, making our democracy more inclusive for voters as well as candidates. Provisions like automatic voter registration, early voting, and no-excuse mail voting will help increase turnout by making it easier to vote. And H.R. 1’s new public financing program will not only help address the ways money in politics can negatively affect the process of politics and lawmaking, but also make it easier for candidates to run for Congress without self-funding or fundraising from wealthy donors.

What has changed?

H.R. 1 is largely the same this Congress as the version first passed in 2019, but there are some important updates. First, this version includes provisions addressing emergency planning, mail and early voting, and polling place operations—important updates in the aftermath of a pandemic election, particularly since measures like expanded ballot drop boxes were vigorously contested last year. It also includes protections against foreign interference in elections, as well as a findings section to justify the Bill and its constitutionality.

However, the most important change affecting the current iteration of H.R. 1 is its context, not its substance. First, and most obviously, Democrats now control the White House and both chambers in Congress. Furthermore, the events of the past two years have made many of the reforms it proposes even more pressing.

What comes next?

Now that H.R. 1 has passed the House, it will advance to the Senate, where its future is less clear. Even with a slim majority, Democrats would need to secure 60 votes or abolish the filibuster in order to pass it. Some Senators have even suggested narrowly abolishing the filibuster only for legislation involving voter rights.

If signed into law, H.R. 1 would be the most ambitious federal election and campaign finance reform proposal in decades. Still, it is also important to recognize that H.R. 1 is only part of the approach. As mentioned earlier, H.R. 1 would not restore the Voting Rights Act. And ambitious as its scope may be, its provisions still only apply to elections for federal offices. Elections are still administered by states, and while H.R. 1 would impose some guardrails, it cannot be a panacea to the onslaughts against voting rights and access by state legislatures across the country.

Zachary Sorenson is a 1L at HLS and worked as a legislative assistant to Rep. Adam Schiff for several years prior to law school. Follow him on Twitter: @zwsorenson.

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A Primer on Brnovich v. DNC: The Supreme Court’s Latest Voting Rights Case

 

By Omeed Alerasool | March 7, 2021

 

Described as the Supreme Court’s “chance to diminish the Voting Rights Act,” Brnovich v. Democratic National Committee was argued in front of the high court’s Justices on Tuesday, March 2, 2021.

WHAT IS THIS CASE ABOUT?

Brnovich involves two electoral policies in Arizona, enacted by Republicans ostensibly to promote election security. Voting rights advocates argue that these laws have the effect of denying minority voters the opportunity to vote.

The first is a ban on third-party ballot collection (referred to as “ballot harvesting” by its critics), which effectively prohibits third-party collection and delivery of voters’ absentee ballots with limited exceptions. Opponents of this law point to its especially detrimental effect on Native American voters, many of whom do not have access to reliable mail services in rural Arizona.

The second policy at issue invalidates ballots cast in the wrong precinct, even if those ballots include votes for statewide races in which all Arizonans choose among the same candidates regardless of precinct location. Challengers of this policy contend that, combined with Arizona’s tendency to frequently change precinct locations, it disproportionately impacts Latino and other minority voters in Arizona.

In 2016, the Democratic National Committee (DNC) and the Arizona Democratic Party challenged these two policies under Section 2 of the Voting Rights Act (VRA), which prohibits any “standard, practice, or procedure . . . which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”

At trial, in 2018, the District Court for the District of Arizona ruled against the DNC and in favor of the defendants. On an en banc (full court) appeal in the Ninth Circuit, however, the DNC prevailed in January 2020.

WHY DOES THIS CASE MATTER?

The VRA was passed by Congress in 1965 during the Civil Rights Movement, and subsequently renewed in 1970, 1975, 1982, 1992, and 2006. Until 2013’s Supreme Court decision in Shelby County v. Holder, the VRA’s most powerful tool was Section 5. Under Section 5, policies such as those at issue here would need to be “precleared” by the U.S. Department of Justice or the D.C. federal district court. Section 5 applied to states with a history of discrimination, and, in fact, Arizona’s ballot collection ban failed to obtain preclearance when it was first proposed by the state legislature in 2011. In 2013, the Supreme Court delivered its Shelby County decision, which invalidated the formula that determined which jurisdictions were subject to Section 5 preclearance requirements, effectively striking down the most effective tool against racially discriminatory election practices.

Until this point, Section 2 had primarily been used in the redistricting context to combat “vote dilution” using a standard of application developed by the Supreme Court’s Thornburg v. Gingles decision in 1986. After the loss of Section 5, however, voting rights advocates have explored Section 2’s application to vote denial, in order to potentially fill (at least part of) the void left by Shelby County. While vote dilution has had standards for courts to apply when reviewing such claims, the Supreme Court has yet to provide standards for identifying and applying Section 2 in the vote denial context. Enter: Brnovich.

Both sides in Brnovich propose their own versions of a vote denial test—that is, standards by which courts should assess whether an election policy denies the right to vote on the basis of race in violation of Section 2. The respondents essentially propose versions of the test used by the Ninth Circuit, which struck down the two policies after finding that they created a racially disparate impact on voters in light of the “totality of the circumstances” in Arizona. The petitioners propose stricter tests which require challengers to meet a higher bar before a court could invalidate a policy, including proving a substantial racial disparity and evaluating the impact in light of alternative voting options available to affected voters. Among the many third parties (amici) submitting their ideas to the Supreme Court, Harvard Law School’s Nicholas Stephanopoulos proposed a test that would apply similar standards as those used in other anti-discrimination contexts, such as Title VII. (Justice Breyer appeared to prefer Prof. Stephanopoulos’ proposal at oral argument.)

Potential standards aside, the current Supreme Court’s 6-3 conservative tilt has also raised concerns that the entirety of Section 2 could be neutralized under an argument that application of the law in the manner used here is not permitted under the Fifteenth Amendment of the U.S. Constitution, which served as the justification for Congress’ enactment of the VRA.

WHAT HAPPENED AT ORAL ARGUMENT?

Four advocates argued the case to the nine Justices over the phone for two hours. Notably, no questions were raised about the constitutionality of Section 2, as the argument mostly focused on potential standards of application, as well as on Arizona’s state interests in administering and protecting its elections and the standing of the parties to raise these issues to the Supreme Court.

First, Michael Carvin argued for the private petitioners (the Arizona Republican Party). In response to several hypotheticals posed by Justice Kagan, Carvin appeared to contradict his side’s written briefs at times, conceding that there are circumstances in which “time, manner, and place” election regulations could produce impermissibly disparate impacts across racial lines. (Justice Kavanaugh later called him out on the apparent contradiction.) Most notably, in response to a question from Justice Barrett regarding the Arizona Republican Party’s standing to raise the case to the Supreme Court, Carvin effectively argued that allowing more people to vote by invalidating the policies at issue would hurt Republican chances of winning elections. (“[I]t puts us at a competitive disadvantage relative to Democrats. Politics is a zero sum game.”) Carvin was followed by Mark Brnovich, the Attorney General of Arizona and the named petitioner, who argued for the petitioners’ stricter version of a vote denial test and in favor of his state’s ability to regulate elections and “monitor for fraud.” He argued that the impact of the policies at issue here were not substantial enough to demonstrate legal discrimination.

Counsel for respondents included Jessica Amunson, representing Arizona’s Democratic Secretary of State, Katie Hobbs, and Bruce Spiva, representing the DNC. Both Amunson and Spiva fielded questions about voter fraud, election security, and on the scope of allegedly sweeping scope of their proposed standards. Amunson argued that the standards proposed by the petitioners were too inflexible to fulfill the mandate of Section 2. She dismissed petitioners’ contention that a more flexible test would result in all sorts of election regulations facing judicial scrutiny. Notably, in response to questions from Chief Justice Roberts on “ballot harvesting,” Amunson rejected the characterization of respondents’ test as pursuing “racial proportionality” and cited Roberts’ own words in the campaign finance context in arguing that courts should be particularly skeptical of reviewing policies which purportedly respond to yet unproven risks of fraud. Spiva echoed Amunson in asserting that the ballot collection ban could not have been motivated by anti-fraud concerns. He defended the DNC’s decision to challenge the out-of-precinct policy rather than the frequent changing of precinct locations, describing it as the “but-for cause” of the disenfranchisement of minority voters. Spiva closed with a reference to Shelby County, where Roberts wrote of Section 2 as a remaining nationwide ban on voting discrimination, and which was followed by more voting restrictions being enacted across the country than at any time since the end of Jim Crow.

For a complete transcript and audio recording of the oral argument, see here.

WHAT ARE THE POSSIBLE OUTCOMES?

While it seems unlikely that the entirety of Section 2 will be stripped of its power, it remains likely that the vote denial test ultimately adopted by the Supreme Court will be one that is quite strict. Even if a more favorable test (from the respondents’ perspective) is adopted, Arizona’s two policies are likely to be saved by the Court. In other words, even if the Court adopts standards for vote denial that future plaintiffs could find workable, it will probably also conclude that the DNC claim here against Arizona’s two policies fails to meet those new standards.

Looking at the nine members of the Court, the three liberal-leaning Justices (Breyer, Sotomayor, and Kagan) will probably support the respondents’ position. Meanwhile, Justices Thomas, Alito, and Gorsuch seem likely to take the strongest stance against the DNC’s position. The Justices to watch will be Chief Justice Roberts and the newest members, Justices Kavanaugh and Barrett. Roberts wrote the Shelby County decision, but that decision also referenced Section 2 as a remaining tool for voting rights advocates, and he may hesitate to make too dramatic a move. Kavanaugh and Barrett may be open to a somewhat more favorable result for the respondents, though where they ultimately land on the matter remains to be seen.

Given the number of proposed legal standards and issues at play, perhaps the Supreme Court will surprise everyone and decide the issue on standing grounds, punting the issue of Section 2 vote denial for another day (in the spirit of 2018’s Gill v. Whitford decision involving partisan gerrymandering, which was followed by 2019’s Rucho v. Common Cause).

And, notably, there are immediate political implications that add to what is already a complicated situation. For one, a decision resulting in a severely strict vote denial test, or a gutting of Section 2 in general, could serve as the final straw that breaks the filibuster in the U.S. Senate. With Democrats already pushing for major pro-democracy reforms, an adverse decision might be enough to give proposals such as H.R. 1 enough impetus to pass the Senate.

Ultimately, the Supreme Court’s decision, and its impact on voting rights and democracy, will be clear later this year.

 

Omeed Alerasool is Chief of Staff of the Equal Democracy Project and a 2L at Harvard Law School. He also serves as Editor-in-Chief of the Harvard Human Rights Journal. Omeed’s commentary on government, democracy, and foreign policy has appeared in HuffPost, Diplomatic Courier, and other outlets. Follow on Twitter: @OmeedAlerasool

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Lessons from Election Litigation in the COVID-19 Era

By Irfan Mahmud | November 15, 2020

 

In this heavily litigious election year, courts throughout the country have been frequently ruling on election law challenges. As state legislatures and courts worked in tandem to make voting more accessible during the unique context of a pandemic, friction resulted over the role of the courts in election law. Courts determine the constitutionality of election regulations by weighing the burden such regulations place on voters against the state interests they advance. Lower courts have generally been convinced by the weight of the practical burdens voters would face during a global pandemic to rule in favor of making the franchise accessible. By contrast, the Supreme Court and some appellate courts have weighed abstract state interests advanced by state actors, e.g., protecting against voter fraud or confusion, more heavily in this inquiry, ruling against judicial changes to election laws. 

As a result of this rift in approach between lower and higher courts, litigators will need to craft convincing arguments going forward that both take advantage of lower courts’ sympathy for making voting accessible, while also catering to the Supreme Court’s sometimes dispositive consideration of states’ interests.

Two seminal Supreme Court cases established the balancing framework that is currently used to assess the constitutionality of election regulations that could burden the right to vote. The doctrine that was first formulated in Anderson v. Celebrezze (1983) and reiterated and clarified in Burdick v. Takyushi (1992) (“Anderson–Burdick”) applies a flexible standard to determine what degree of scrutiny a court should give an election regulation based on the law’s burden on the right to vote weighed against state interests advanced by the law: the more burdensome a regulation, the more compelling a state’s interest must be to justify the regulation.

Recent lower court cases have demonstrated an inclination for courts to use Anderson–Burdick jurisprudence as a tool to remove burdensome requirements for absentee voting during COVID-19, such as witness or notary requirements. However, the newly solidly conservative Supreme Court bench believes otherwise. The high court has sided with conservative litigators in deferring to state interests – relying on the so-called Purcell doctrine – and viewing, as a result, the authority of the courts to intervene in matters of state law as limited.

The Court invokes the Purcell doctrine separately – but not totally independently – from Anderson-Burdick. This doctrine was announced in Purcell v. Gonzalez (2006) and reaffirmed this year in Republican National Committee v. Democratic National Committee (2020). The Purcell principle states that courts should refrain from changing election regulations close to an election. While doctrinally distinct from Anderson-Burdick, the Purcell doctrine itself also relies on the consideration of abstract state interests – primarily the objective of avoiding voter confusion. In practice, it has served as a judicial backstop to the liberalization of election laws, and has not necessarily succeeded in its objectives: appellate courts reversing lower court election law rulings even closer to the election serves to only sow more confusion (as demonstrated, for example, by the recent decision in South Carolina). 

As predicted by their concern for voter burdens, lower courts have pushed back on the use of Purcell. For instance, in People First of Alabama v. Secretary of State of Alabama (2020) the Eleventh Circuit explicitly limits the scope of Purcell, stating that “Purcell is not a magic wand that defendants can wave to make any unconstitutional election restriction disappear so long as an impending election exists.” The Purcell doctrine will be less relevant – and Anderson-Burdick a truer balancing – when laws are changed farther in advance of an election. However, in this election, as states changed laws in response to unpredictable and unprecedented circumstances, Purcell has had a powerful influence.

While the Supreme Court has not yet substantively engaged with the lower courts’ application of the Anderson-Burdick balancing test, the dissent to a Fourth Circuit order to rehear en banc a refusal to remove absentee ballot witness requirements is more illuminating. Though the Circuit Judges in that case, Middleton v. Andino (2020), invoke the same arguments the Supreme Court does, they make an effort to make concrete the state interests and diminish the practical voter burdens. They point to the state interest of voter fraud, which they call “indisputably” a “compelling interest,” and offer examples of how that is a concrete interest, pointing to a recent election in neighboring North Carolina that was overturned due to absentee ballot fraud. Likewise, they spend considerable time downplaying the practical burdens of witness requirements on the voters even during COVID-19. This in-depth analysis shows that even those conservative jurists in appellate courts who tend to agree with the Supreme Court’s reasoning have responded to the trend in the lower courts by concretizing the state interests (in this case, fraud) and weighing them more heavily.

One of the few cases in which the Supreme Court has sided with the lower courts is Republican National Committee v. Common Cause Rhode Island (2020). In this case, the original parties, Common Cause Rhode Island and the Rhode Island Secretary of State Nellie Gorbea, stipulated to a consent decree in which Gorbea agreed to suspend witness requirements for absentee ballots. In an appeal brought by the Republican National Committee (RNC), as intervenors, challenging the decree, the First Circuit denied their requested stay, relying on the Anderson-Burdick framework to show that witness requirements are overly burdensome on voters during the pandemic. The Supreme Court agreed with the First Circuit in denying the RNC’s emergency application for stay because elected state officials did not support the RNC’s position to stay the district court ruling. It seems that the Court will at least require some showing from state officials that they themselves wish to keep the state election laws in place in order to side with the abstract state interest in Anderson-Burdick balancing. 

Now that the 2020 General Election has concluded,  it is a time for reflection on this election year that set records for both the highest number of lawsuits and highest number of voters. As legislators and litigators gear up to improve the electoral system in response to this year’s challenges, the courts will have more power to rule without the precondition for the Purcell doctrine – the closeness of the election – looming so near at hand. 

Litigators in the voting rights space should capitalize on this willingness at the lower court level to prioritize accessibility and a growing effort by higher courts to identify concrete interests. The courts have shown an openness to accepting specific voter burdens, as evidenced by data, against abstract state interests, which frequently have no basis in evidence. In crafting their arguments, litigators must present data and show how in application, the election regulations result in voter disenfranchisement – and how can that truly serve a state interest? 

There’s at least one positive from the jumble of election law cases decided before the 2020 election: evidence. Going forward, litigators will be able to use data from the 2020 elections themselves, and the vast records amassed during all the related litigation (pre- and post-voting), to help debunk some of the state interests, such as voter fraud, typically advanced in election litigation. They can show, for example, that when voting is more accessible and more ballots are cast, there is no uptick in fraud. 

Ultimately, once the dust settles on the 2020 election and the accompanying litigation, the fight to protect the fundamental right to vote will continue accommodating the judicial positions encountered this year. As a consequence, litigators must also continue to preempt state defenses on the grounds of maintaining fair elections, voter integrity, and voting undiluted by unqualified voters by showing that those concerns are not rooted in actual consequences of expanded voter access. They must engage with the likely challenges that will come from the Supreme Court and invent clever ways to engage with the Purcell doctrine and other arguments that conservative litigators will use to persuade the Supreme Court and like-minded judges in the circuit and district courts. Only through this push and pull will the fundamental exercise of the franchise truly be free and open to all.

Irfan Mahmud is a 2L at Harvard Law School who is interested in political law and invested in protecting the fundamental right to vote in the U.S.