February 22, 2013

My contribution to the ACSblog Shelby County v. Holder symposium.  This commentary gives five reasons why the case to uphold Section 5′s preclearance and coverage provisions is stronger than the case to uphold Indiana’s photo ID law.

Voting Discrimination Remains Concentrated in Covered States

February 14, 2013

My contribution to the SCOTUSblog Shelby County v. Holder symposium.  This commentary summarizes many of the strongest legal arguments and facts in favor of upholding Section 5′s preclearance and coverage provisions.

The next Voting Rights Act

January 30, 2013

My contribution to the Reuters symposium on the future of the Voting Rights Act.

NPR’s Tell Me More

December 3, 2012

Debated former FEC member Hans von Spakovsky on Section 5 of the Voting Rights Act on Michel Martin’s “Tell Me More” show on NPR.  Click here to listen.

NPR’s Diane Rehm

September 11, 2012

Voting Laws and the 2012 Presidential Race with Diane, Bruce Fein, Rick Hasen, and John Fortier.  Click here to listen.

NPR’s Tell Me More

November 7, 2011

Debated former FEC member Hans von Spakovsky on Voter ID on Michel Martin’s “Tell Me More” show on NPR.  Click here to listen.

Roland Martin Show

October 7, 2011

Interview on The Roland Martin Show with Nicole Austin-Hillery of the Brennan Center on voter suppression (the Brennan Center has great reports on both voting and money in politics).  Click here to watch.

Michael Eric Dyson Show

October 28, 2010

Interview on The Michael Eric Dyson Show.  Election officials and former felons across the country often erroneously assume former felons can’t vote. This misinformation is a huge source of disenfranchisement–perhaps greater than the actual disenfranchisement in restrictive states like VA and KY that actually disenfranchise former felons for life, even after they have served all terms of their sentences.  Click here to listen.

C-Span TV

October 18, 2010.

“How Will History Judge the Impact of Citizens United v. FEC.” Moderated panel, with Sidney Milkis, Michael Malbin, Nancy Rosenblum, Gerald Berk, Allison Hayward, Peter Overby, and Trevor Potter. U.S. Capitol Visitor Center, Washington DC. Click here to watch (Overton opening statement at 1:02).

Michael Eric Dyson Show

October 18, 2010

Interview on The Michael Eric Dyson Show, focusing on Tea Party efforts to prevent voter fraud, and concerns about access. Click here to listen.

Michael Eric Dyson Show

October 11, 2010

Interview on The Michael Eric Dyson Show, focusing on disenfranchisement of college students due to misinformation provided by local election officials. Click here to listen.

Michael Eric Dyson Show

October 6, 2010

Interview on The Michael Eric Dyson Show, focusing on disenfranchisement of poor people due to States’ failure to provide voter registration at public assistance offices in violation of federal law. Click here to listen.

Michael Eric Dyson Show

September 9, 2010

Interview on The Michael Eric Dyson Show, focusing on the effects of barriers to the ballot and corporate spending on midterm elections. Click here to listen.

Lack of participation is a primary problem with money in politics. Relatively few people make political contributions—less than one-half of one percent of the population provides the bulk of the money that politicians collect from individual contributors. This Article introduces and details the state’s interest in expanding citizen participation in financing politics. Rather than focus solely on pushing an incomplete anticorruption framework to restrict special interest influence, reformers should also embrace a strategy of giving more people influence. Reformers should accept that money produces speech and that “special interests” in the form of grassroots organizations are a democratic good that can stimulate participation. Increased participation makes government more accountable and responsive, and citizens who give even small financial contributions are more likely to become vested and participate in nonfinancial ways. The Article also presents policies that allow federal, state, and local legislatures to advance the state’s interest in participation. Such policies include tax credits, donor matching funds, exemptions from disclosure for donors of $500 or less, and relaxed restrictions on political action committees (PACs) and parties funded by small donors.

Actually, today’s decision in Doe v. Walker issues a preliminary injunction extending Maryland’s November 12, 2010 deadline for absentee ballots by ten days.  The Court found that absent uniformed services and overseas voters (I’ll call them UOCAVA voters) were likely to succeed on the merits that the Nov. 12 deadline unconstitutionally burdened their fundamental right to vote in state elections.    In short, the Court found that it was likely that at least some of the absentee ballots sent to UOCAVA voters containing the state and local races were not postmarked until October 12 (absentee ballots for the federal races had been sent out earlier—by Sept. 18, to comply with the MOVE Act’s 45-day deadline).   DoD’s Federal Voting Assistance Program estimated that international mail sent to overseas military requires at least 30 days for round-trip processing, and recommends 45 days.   As the Court in U.S. v. Cunningham (2009, discussed below) stated, “in ‘some remote, austere locations,’ it may take as long as thirty-five days just for mail to travel from the United States to that location in the first place before the sevicemember can even open and read that mail, much less send response mail back to the United States.”

By imposing a deadline that was insufficient for round-trip processing, the court in Walker found that the state imposed a severe burden on UOCAVA voters’ fundamental right to vote, and that the state’s interest in the November 12 deadline was inadequate.

Doe v. Walker is significant in that it goes beyond U.S. v. Cunningham (2009).  While Cunningham used federal statutory law (pre-MOVE UOCAVA) to conclude that Virginia didn’t give UOCAVA voters a meaningful opportunity to cast absentee ballots in a federal election due to a short turnaround, Walker concluded that Maryland would likely violate absent uniformed services and overseas voters’ fundamental right to vote under the U.S. Constitution (Anderson/Burdick standard) in state elections due to a short turnaround.

Walker is an important case in eliminating barriers and securing the right to vote.  Before the MOVE Act, of absentee ballots requested, Pew noted that 86% of the general population’s ballots were completed by voters and arrived at election administrators’ offices on time, compared to only 27% of the ballots from members of the military overseas (in large part due to delays in international mail service to remote locations).  While the MOVE Act establishes a 45-day window to protect the right to vote in federal elections, voting rights in state elections remain burdened when states choose to separate federal and state ballots as Maryland did.  I appreciate the logistical difficulties faced by my home state of Maryland, but this case is a significant victory for voters.

Low-Income Voters: About 3 million additional low-income voters would be registered each year if States fully complied with a federal law that requires them to offer voter registration at public assistance agencies. (Listen here)

Students: Too often, election officials give college students misinformation about residency that discourages students from registering to vote. (Listen here)

Former Felons: Election officials and former felons across the country often erroneously assume former felons can’t vote. This misinformation is a huge source of disenfranchisement–perhaps greater than the actual disenfranchisement in restrictive states like VA and KY that actually disenfranchise former felons for life, even after they have served all terms of their sentences. (Listen here).

If I were to do another segment, it would be on challenges to military and overseas voters. In previous elections, Americans in the U.S. were twice as likely to cast a ballot as military members overseas. Also, of absentee ballots requested, Pew noted that 86% of the general population’s ballots were completed by voters and arrived at election administrators’ offices on time, compared to only 27% of the ballots from members of the military overseas (in large part due to delays in international mail service to remote locations). As a result of this problem, Congress passed The MOVE Act in 2009, which required that election officials send ballots to members of the military no later than 45 days before the election. We’ll see if things improve in this election cycle.

UVA Prof. Sidney Milkis moderated, and featured speakers also included Michael Malbin (Campaign Finance Institute), Nancy Rosenblum (Harvard), Gerald Berk (Oregon), Allison Hayward (Center for Competitive Politics), Peter Overby (NPR), and Trevor Potter (McCain-Palin General Counsel).   Perhaps because Prof. Rosenblum’s presentation was most provocative (she advocates an enhanced role of political parties in the aftermath of the Supreme Court’s Citizens United decision, and she emphasizes widespread political participation), my comments focused on Prof. Rosenblum.  I agree with her on a great deal (the traditional reform focus is misguided, reformers should give politicians and parties incentives to engage disempowered Americans).  I think Prof. Rosenblum underestimates, however, the transformative power of matching funds for small contributors (making a $100 contribution worth $500 to a candidate) and I disagree with her proposal that we allow parties to collect large or unlimited contributions to engage in GOTV (I think it just returns us to the transactional days in which soft money by rich folks is used to transport working Americans to the polls to further the interests of a party in a utilitarian fashion, but there is a lack of serious engagement of voters).

–Donna Brazile . . . .

“With searing detail and the stories of real voters, [Overton] reveals a dirty little secret: our democratic system is crumbling and, with it, the legitimacy of our institutions.”
– U.S. Congressman John Conyers

“This book is a must for every American who cares about the integrity of our electoral system.”
– Raul Yzaguirre, President of National Council of La Raza, 1974-2004

Too often, politicians choose voters rather than voters choosing politicians. . . .

Published by W. W. Norton & Company.