U.S. Commission on Civil Rights

Election Reform: An Analysis of Proposals and the Commission's Recommendations for Improving America's Election System

Chapter I

Enforcement of Existing Voting Rights Legislation

Over time, the federal government has enacted legislation to safeguard voting rights, notably the Voting Rights Act of 1965 (amended in 1970, 1975, and 1982)[1]; the Voting Accessibility for the Elderly and Handicapped Act of 1984;[2] the Americans with Disabilities Act of 1990;[3] the National Voter Registration Act of 1993 (also known as the Motor Voter Act); [4] and the Uniformed and Overseas Citizens Absentee Voting Act of 1986.[5] For the purpose of this report, an examination of the existing laws protecting the rights of all voters and proposed electoral reforms, the most critical of these acts are the Voting Rights Act and the National Voter Registration Act.

THE VOTING RIGHTS ACT OF 1965

The Voting Rights Act of 1965 was passed by Congress to address both direct and indirect obstacles to minority voting, [6] establishing protection of the voting rights of those individuals disenfranchised because of their race.[7] Specifically, the act was a response to the extensive disenfranchisement of African Americans throughout the South. The act penetrated areas previously the sole domain of states rights with regard to the right to vote by, among other directives: (1) ending literacy tests as a prerequisite to voting in states and counties where voter registration and turnout in the 1964 presidential election was less than 50 percent of the voting-age population; (2) preventing the legal enforcement of voting changes, until approved by either a three-judge court in the District of Columbia or the Attorney General (thus requiring preclearance before implementing any voting changes), in these states and counties; and (3) nationally prohibiting the denial or abridgement of the right to vote on account of race or color.[8] As a result of the Voting Rights Act, the number of African Americans registered to vote increased substantially in these states. For example, while in March 1965 only 6.7 percent of eligible African Americans were registered to vote in Mississippi, by 1988 74.2 percent of these individuals were registered. However, it must be noted that the percentage of white registered voters in Mississippi during this same period also increased, from 69.9 percent to 80.5 percent.[9]

THE NATIONAL VOTER REGISTRATION ACT OF 1993

Despite passage of the Voting Rights Act of 1965 and its subsequent extensions, full equality for minority voters remained an elusive aim. It was in this context, and as a further effort to equalize the voting rights of all citizens, that the Motor Voter Act was enacted in 1993. The act seeks to increase voting opportunities for all citizens and to remove the vestiges of discrimination which have historically resulted in lower voter registration rates of minorities and persons with disabilities. [10]

To accomplish these goals, the act requires states to provide (1) the opportunity for voter registration concurrent with driver s license application or renewal; (2) the opportunity for voter registration concurrent with the receipt of public assistance at all offices offering such assistance and those offices administering state-funded programs to assist persons with disabilities; and (3) the opportunity for mail-in voter registration. The National Voter Registration Act also includes limits on purging voter rolls, specifically prohibiting states from removing names of voters who have not voted or purging names for criminal convictions, mental incapacity, or change of address. Names may be purged due to a change of address only at the voter's request, and in the event of death only at the request of a family member. Upon taking general effect on January 1, 1995, several states were excluded from the requirements because they already met them or were given an extension in order to amend state constitutions to allow for their implementation. However, several states (e.g., California, Pennsylvania, New York, and Virginia) were sued by the Voting Section of the Department of Justice on January 23, 1995, for failing to comply with the act. Despite states assertions that the act was unconstitutional, on June 23, 1995, the Seventh Circuit Court of Appeals ruled the act to be constitutional.[11]

ENFORCEMENT OF EXISTING LAWS

The federal enforcement of voting rights laws falls to the Voting Section of the Department of Justice's Civil Rights Division. In performing this responsibility, the Voting Section has brought lawsuits throughout the nation to ensure compliance with these laws. However, these efforts alone have not proven sufficient. In addition to the federal laws governing the election process in the United States, there are laws governing the election process, along with voting policies, regulations, and procedures, in every state in the Union. Yet, as numerous as are these edicts, it is clear that their enforcement is haphazard, at best. It is difficult to assign responsibility for the violation of an individual's voting rights because state and local governments delegate election authority diversely. Moreover, because some jurisdictions do not require the reporting of voting irregularities, it cannot be known if violations occurred to hold those responsible accountable.

However, in a clear scenario of ineptitude, where complaints by voters are given credence, those charged with the investigation are often responsible for the violation. Furthermore, and the encompassing factor in this entire process, states and counties willing to investigate complaints may lack well-established procedures for investigating them, such as having neither internal reporting systems nor complaints processing. Clearly, there is a lack of coherent enforcement of existing laws state and federal protecting the rights of voters.

Impediments to enforcing voting rights are widespread. And what is evident is that only full enforcement of existing federal and state election laws will bring about equality in America's voting booths. For, laws are worthless if they do not uphold the rights of the people they were passed to protect. The one safeguard designed to ensure enforcement of the laws, and which is intrinsic to the American democracy, is the right to file suit to force compliance.

Legal challenges to the sufficiency of voting systems and the denial of the right to vote can stem from citizens exercising their private right of action or federal entities charged with enforcement of voting rights. As will be discussed in greater detail in the recommendations that follow, one obstacle to exercising the private right of action is the lack of sufficient data following an election and the resulting difficulty individuals have in obtaining evidence to prove a violation has occurred. Given these limitations and the need for broad enforcement, federally initiated litigation is an option that should be exercised more frequently. Existing federal offices such as the Federal Election Commission or the Department of Justice's Civil Rights Division should bring cases to prosecute violations separately from state administrative divisions. There are several areas in particular where the federal government should concentrate its enforcement efforts through litigation. The federal government should initiate litigation against state and local election officials:

• who, either through their actions or failure to act, violate the Voting Rights Act of 1965, as amended, the Voting Accessibility for the Elderly and Handicapped Act, and other relevant federal and/or state laws, resulting in the disproportionate inability of certain groups of individuals to vote and have their vote counted;

• who implement list maintenance activities before, during, or after an election that either intentionally discriminate against people of color or result in the denial of equal access to the political process;

• who violate federal and/or state laws that regulate how funds are distributed to polling places or precincts;

• whose actions or failure to act violate federal and/or state laws that require poll workers to communicate with election officials or access data during an election;

• whose actions or failure to act violate federal and/or state laws that ensure voters who arrive at a polling place during official poll hours can exercise their right to vote, and that polling places are neither closed nor moved without required notification to affected voters;

• who fail to provide required training for poll workers;

• who violate relevant federal and/or state laws by failing to uniformly inform voters about the registration process;

• who implement practices that either intentionally discriminate or result in discrimination against persons with disabilities and language minorities;

• whose actions or failure to act violate relevant federal and/or state laws by permanently disenfranchising voters on the basis of felony conviction; and

• whose actions or failure to act violate federal and/or state laws by failing to allow voters to cast ballots after challenging their absence from registration lists and signing an affidavit attesting to their eligibility to vote.[12]