The director of the ACLU’s Voting Rights Project was joined by practicing attorneys and some of the nation’s top legal scholars on election law in a virtual program on the ways in which access to the ballot box has been expanded - and limited - throughout history.
To the American Civil Liberties Union, the original voter identification bill introduced in 2013 in the North Carolina General Assembly wasn’t “tricky” or even very remarkable. It simply required someone to show a government-issued photo ID before casting a ballot in the Tar Heel State.
But the legislation seemed to stall in the North Carolina Senate. There was no debate, according Dale Ho, director of the ACLU’s Voting Rights Project. There were no votes.
It wasn’t until a few months later, after the Supreme Court of the United States issued a 5-4 ruling in Shelby County v. Holder that invalidated parts of the Voting Rights Act of 1965, when state lawmakers moved on the bill. Revised legislation soon appeared that would also:
- Eliminate same-day registration and voting;
- Eliminate pre-registration for 16- and 17-year-olds when they go to the DMV for a license;
- Reduce early voting by a week; and
- Invalidate ballots cast in the wrong precinct, even if the voter wasn’t at fault.
The bill was signed into law. The ACLU sued. During the discovery process, it was found that lawmakers and their staff had requested specific data from the North Carolina Board of Elections. Data proved Black voters would be disproportionately impacted by changes.
“The one form of voting that the legislative staff collected data on that was disproportionately used by white voters in North Carolina was absentee voting,” Ho recounted for attendees of a recent symposium on voting rights hosted by the Elon Law Review, “and the final version of the bill exempted absentee voting from its requirements.”
And though a federal court eventually struck down North Carolina’s new voter identification law, noting how it “targets African-American voters with almost surgical precision,” Ho said that efforts to disenfranchise certain groups remain active – and even more litigation is forthcoming in a contentious 2020 election season.
The symposium on September 25, 2020, was the first ever to be organized in a virtual format by the Elon Law Review. And its topics, related to the theme of “Access to the Ballot on the Eve of the 2020 Election: What Barriers Still Exist?”, resonated with more than 150 registered attendees who earned continuing legal credit hours from the North Carolina State Bar.
Ho’s moderated conversation with Elon Law Professor Catherine Dunham did more than recount the way in which North Carolina found itself embroiled in litigation related to voting rights. The duo looked ahead to the upcoming presidential election and the litigation that is already taking place related to ballot drop boxes, changes at the U.S. Postal Service, and more.
“A lot of people look at the litigation right now and get nervous that the rules are shifting and changing before the election,” Ho said. “My view is that it’s better to get this worked out in advance, even if it results in some degree of lack of clarity right now, 40 days out. It would be far worse to be litigating this after the fact when the results of the election could turn on (a court decision).”
The death of Justice Ruth Bader Ginsburg was a blow not only to expanded voting rights, Ho said, but to the ACLU itself. Ginsburg had founded the ACLU’s Women’s Rights Project in 1972.
“Justice Ginsburg was a champion of voting rights and civil rights generally across the board before she was a judge,” Ho said. “Her loss is deeply felt by a lot of people and in particular I think for those at the ACLU, we feel like we lost a family member in some ways.”
The conversation between Ho and Dunham honored the late Michael Rich, a nationally recognized scholar of criminal law who died of cancer in late 2016 while serving as the Jennings Professor and Emerging Scholar, an Elon Law professorship endowed by the Jennings Family – Maurice Jennings Sr. ’57 and his wife, Linda, and Maurice “Burney” Jennings Jr. ’87 and his wife Dina ’87. The lecture itself took place just six days after the passing of Maurice Jennings Sr.
Ho was followed in the symposium by attorneys and scholars who shared their own views and ideas for strengthening democracy and removing barriers to electoral participation.
Panel Discussion: Reshaping our Electoral System
- Brandon Draper, Harris County Attorney’s Office in Texas and author, “No More Half Measures: The Case for Compulsory Voting in the United States Elections”
- Louis Cholden-Brown, staff to the New York City Council and author, “Local Poll-Site, National Repercussions”
Moderated by Elon Law Associate Professor Andy Haile
Draper outlined a proposal to nationally implement ranked-choice voting, a concept that has gained traction in parts of the United States including Maine, as well as his thoughts on compulsory voting as seen in nations like Australia. Cholden-Brown shared from his paper on the ways in which actions to restrict or expand ballot access in some states have led to legislation that impacts the way other jurisdictions approach their systems of voting.
- Monika Taliaferro, attorney for the District of Columbia and author, “The Impact of the Criminal Justice System on Electoral Participation”
- Cynthia Boyer, Institut National Universitaire Champollion and author, “From Disenfranchisement to Citizenship, the One-Person One-Vote Rule Issue and Racial Discrimination in the Trump Era”
Moderated by Elon Law Assistant Professor Tiffany Atkins L’11
Taliaferro and Boyer discussed the ways in which structural racism takes away the right to vote from a person who has already fulfilled a debt to society. They pointed to research that shows voting helps keep individuals connected to a community and, by extension, reduces recidivism. The lawyers also noted that inmate populations – disproportionately African-American – are removed from home communities and confined in rural (and white) areas of a state that give those regions more political clout without offering a voice to the incarcerated.
Panel Discussion: Access to the Ballot Amidst a Global Pandemic, COVID-19
- Joshua Douglas, Professor at University of Kentucky College of Law
- Bertrall Ross, Professor at Berkeley Law
- Rick Pildes, Professor at NYU School of Law
Moderated by Elon Law Professor and Senior Scholar Steve Friedland
Featuring three prominent legal scholars of election law, the discussion focused on the ways in which voters could best ensure their votes are counted. Scholars recommended that people vote in person, now that more information is known on the way COVID-19 spreads and how wearing masks has become a norm.
The Elon Law Review program was organized by symposium co-editors Victoria “Tori” Ford ‘17 L’20 and Samantha Dudley L’20.
“When Samantha and I chose the voting rights topic over a year ago, we knew the subject matter would not only be timely but also important as we approach the 2020 presidential election,” Ford said. “What we didn’t anticipate was the particular relevance the topic would have as the hardships of 2020 unfolded. We knew that our symposium could not ignore the pressing events this year brought, including the severity of COVID-19, the impact of racial injustices, and the latest passing of Justice Ginsburg. These events heightened the importance of discussing access to the ballot and the right to vote.”
National interest in voting rights was also a factor in attracting a large virtual audience.
“Everyone is talking about our topic. It has grabbed the attention of … arguably most Americans,” Dudley said. “I’m grateful for the opportunity to have helped host such an event, especially given the range of ideas presented, whether it be as to the nature of the problems or solutions to those problems. I wish I could see more discussions like what I witnessed today.”