Last week, Kris Kobach, appointed by President Donald Trump to investigate voter fraud, sent a letter to all 50 states, requesting their voter files. Voters’ names, their party affiliation, military status, and other personal information, Kobach wrote, should be handed over to the Election Integrity Commission. In addition, the last four digits of voters’ Social Security numbers should be provided to the federal government, the letter said.

Within a few days, a majority of states rejected Kobach’s request; many were aghast at his demands. And on Friday, Kobach himself said he could not comply with parts of his own request. Here is what you need to know about the whole situation:

Trump Decries Voter Fraud

Kobach’s effort has its roots in Trump’s repeated claims about voter fraud. Trump has said three to five million people illegally voted in last fall’s election, thus handing the popular vote to his opponent, Hillary Clinton. After the election, in which Trump won the electoral college but lost the popular vote, he tweeted, “in addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally.”

He later pegged the number of illegal votes, in an unsubstantiated and so far unfounded claim, at three to five million. Kobach, during an interview in January, said, “If you take the whole country,” illegal votes were “probably in excess of a million, if you take the entire country for sure.”

In May, Trump created the Election Integrity Commission to investigate voter fraud during the 2016 election, appointing Kobach, Kansas’ secretary of state, as the commission’s vice chairman. The commission is chaired by Vice President Mike Pence.

Kobach’s Letter

Last Wednesday, Kobach sent a letter to all 50 secretaries of states–even the ones who are not in charge of their state’s voter information. The letter specifically requested:

Publicly-available voter roll data including, if publicly available under the laws of your state, the full first and last names of all registrants, middle names or initials if available, addresses, dates of birth, political party (if recorded in your state), last four digits of social security number if available, [and] voter history from 2006 onward.

Kobach said the information would be made available to the public, and said states had until July 14 to fork over the information to the commission.

“Yet Another Boondoggle”

As of Monday afternoon, at least 27 states have rebuffed all or parts of Kobach’s request–including Kansas, Kobach’s own state. Governor Terry McAuliffe of Virginia reacted swiftly to the letter, saying he has “no intention of honoring [Kobach’s] request.” He added in a statement: “Virginia conducts fair, honest, and democratic elections, and there is no evidence of significant voter fraud in Virginia.”

Alex Padilla, California’s secretary of state, said he “will not provide sensitive voter information to a commission that has already inaccurately passed judgment that millions of Californians voted illegally.” Some states have said they would provide Kobach with “publicly available information” like voter rolls, while questioning the commission’s true intentions.

Voting rights advocates have rejected Kobach’s letter as a “propaganda tool” to justify voter suppression ordinances in the future. Dale Ho, director of the ACLU’s Voting Rights Project, said:

I have every reason to think that given the shoddy work that Mr. Kobach has done in this area in the past that this is going to be yet another boondoggle and a propaganda tool that tries to inflate the problem of double registration beyond what it actually is.

And on Friday, Kobach himself suggested he could not comply with his own request. In an interview with the Kansas City Star, Kobach said he would not provide the commission with Kansas voters’ Social Security information.

“In Kansas, the Social Security number is not publicly available,” he said. “Every state receives the same letter, but we’re not asking for it if it’s not publicly available.”

Meanwhile, over the weekend, Trump expressed his discontent with the states refusing to comply.

Numerous states are refusing to give information to the very distinguished VOTER FRAUD PANEL. What are they trying to hide?

— Donald J. Trump (@realDonaldTrump) July 1, 2017

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

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The Voting Rights Act of 1965 has long been considered a critical piece of federal legislation in the Civil Rights Movement. Enacted to prohibit racial discrimination in voting, specifically, it has protected racial minorities from unfair and predatory voting regulations like literacy tests, poll taxes, character tests, and property-ownership requirements, to name a few. In 2013, the Supreme Court decided on a case that struck down key provisions of the act, stating that they were based on old circumstances that had no logical connection to present day.

Since that decision, there have been numerous disputes occurring in states that were once subject to the old provisions of the Voting Rights Act. Lawmakers in several states–many southern–have started passing legislation with more stringent requirements to vote. It begs the question, is the Voting Rights Act still relevant and effective today?

History of the Voting Rights Act of 1965

The Voting Rights Act was signed into law in 1965 under President Lyndon B. Johnson during the height of the Civil Rights Movement. It was signed in the wake of “Bloody Sunday,” the infamous voting rights march from Selma to Montgomery where 600 people, including current Congressman John Lewis, were brutally beaten by Alabama state troopers. The Voting Rights Act was meant to eliminate discriminatory election practices, as states were still resistant to enforcing the Fifteenth Amendment, which declared that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

Section 2 of the act mimicked the language of the Fifteenth Amendment by applying a nationwide prohibition on literacy tests to deny citizens of the right to vote. Moreover, the act also contained other special provisions that only applied to particular jurisdictions. Under Section 5, the act required that specific jurisdictions which attempted to pass new voting practices or procedures needed to receive “preclearance” from the Attorney General or the U.S. District Court for the District of Columbia. Section 4(b) of the act defines eligible districts as those which had a voting test in place as of November 1, 1964 and less than a fifty percent turnout for the 1964 presidential election.

For years, the Supreme Court continually upheld the constitutionality of the Voting Rights Act, including Section 5. This included thwarting racial vote dilution through discriminatory annexations, redistricting plans, election method changes, and changes in voter registration standards and procedures. The section was originally enacted for five years, but has been renewed continually since its enactment.

Shelby County v. Holder

In 2013, the Supreme Court ruled in the case of Shelby County v. Holder. The case, which was out of Shelby County, Alabama, concerned both Sections 4(b) and 5 of the Voting Rights Act. Shelby County sued Eric Holder, the Attorney General at the time, arguing that Section 4(b) and Section 5 were facially unconstitutional, and sought a permanent injunction against their enforcement.

After making its way through the lower courts, it finally reached the Supreme Court. The justices had to decide whether the renewal of Section 5 under Section 4(b) restrictions exceeded Congress’ authority under the Fourteenth and Fifteenth Amendments, in turn violating the Tenth Amendment and Article Four of the Constitution.

The Supreme Court held, in a 5-4 opinion, that Section 4 of the Voting Rights Act was unconstitutional. Essentially, the Court stated that the current formula conflicted with equal sovereignty of the states, as the disparate treatment of states was based on forty-year-old facts, which had no relationship to present day. As Chief Justice John Roberts wrote, “Our country has changed and while any discrimination in voting is too much, Congress must ensure that the legislation is passes to remedy that problem speaks to current conditions.”

In Justice Clarence Thomas’ concurring opinion he argued that Section 5 was also unconstitutional, contending that the blatant discrimination against certain voters that Section 5 was intended to protect against no longer existed. According to Justice Thomas, Congress cannot justify the burden of Section 5 without blatant discrimination.

Current Voting Rights Disputes

Since the court’s decision in 2013, many former preclearance states in the South are now embroiled in legal challenges surrounding voting laws. In Texas, the federal district court recently ruled that Senate Bill 14, which required voters to show a form of photo ID before casting a vote, had a discriminatory effect. Senate Bill 14 was passed in 2011, but was blocked by the preclearance requirement of the Voting Rights Act. After Shelby County v. Holder, Texas officials said they planned to enforce the law.

Lawmakers in North Carolina passed a photo ID requirement, and curbed early-voting hours, same-day voter registration, and limited other registration and voting options. This was eventually struck down by the Fourth Circuit, which noted that the provisions targeted African-Americans with “almost surgical provision.” The Supreme Court declined to stay the ruling in a 4-4 split after Justice Antonin Scalia passed away last year. North Carolina has asked the court to hear the case fully, and now that the court has added Justice Neil Gorsuch it’s possible that it could grant the petition for review.

Just recently, a lawsuit has been brought by the Lawyers’ Committee for Civil Rights Under Law on behalf of five organizations regarding the special election slated to take place in June 2017 in Georgia to replace Republican representative Tom Price. Since the Democrat, Jon Ossoff, failed to achieve the fifty percent threshold needed to win outright, a special election will decide his fate, against Republican Karen Handel. The suit alleges that the Georgia law disenfranchises citizens by requiring voters to have registered for the first round to vote in the runoff. Consequently, since the law means that voters would have had to register in March 2017 to vote in the runoff (before the first election even occurred), a large number of Georgians may be completely stopped from voting in the June 2017 election.

It is Still Relevant?

Just four short years ago, the Supreme Court in Shelby County v. Holder was not hesitant to point out how key sections of the Voting Rights Act were not relevant to modern times. The majority opinion concluded that since the act had worked so well in preventing racial discrimination, it was no longer needed. However, given the numerous laws that have sprung up since the court’s decision, it seems that the act is just as necessary today.

After the act’s initial enactment, it had an instant effect on decreasing racial discrimination in voting. Not only did the number of registered African-American voters increase substantially, but the number of African-Americans elected to office also grew. Moreover, economic growth occurred because of the act. A study of 40 North Carolina counties covered by the act found that those counties experienced larger growth in African-American incomes, occupational status, and attracted more revenue from county and other government sources.

Now, without Section 4(b) in effect to determine which jurisdictions must receive approval of any voting law changes, Section 5 has now become relatively inoperative. Thus, this has allowed states to change laws and policies without any federal oversight.

Conclusion

After Shelby County v. Holder, many former preclearance states jumped at the opportunity to pass more restrictive voting requirements. While lower courts have found subsequent legislation to contain discriminatory intent or effect, the Supreme Court has yet to weigh in on them. Thus, with a full court now in place after Justice Gorsuch’s swearing-in, the legacy of the Voting Rights Act is still up for debate.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

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Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

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The Fourth Circuit Court of Appeals struck down a North Carolina voting law on Friday, concluding that it was passed with clear “discriminatory intent.”

The ruling forcefully reversed a district court finding that did not acknowledge the law’s intent to discriminate. In the ruling, Circuit Court Judge Diana Gibbon Motz writes,

In holding that the legislature did not enact the challenged provisions with discriminatory intent, the court seems to have missed the forest in carefully surveying the many trees. This failure of perspective led the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina.

Motz, also writing for judges James Wynn and Henry Floyd, goes on to note that the sequence of events that led to the law provides sufficient evidence to conclude that the law intentionally sought to restrict voting rights of African American voters in clear violation of the Voting Rights Act.

While many argue that voting laws like the one in North Carolina are passed for partisan reasons–by focusing on minority communities that traditionally vote for Democrats, Republican legislators may be seeking an electoral edge–the way this law in particular targeted race amounts to racial discrimination. And yes, challenges to these laws could also be considered partisan efforts on behalf of the Democrats as well, but the racial focus here appears to take it a step further.

A Quick Look at the Voting Rights Act

To understand this case in North Carolina, it’s important to understand the Voting Rights Act. Congress passed the VRA in 1965 to ensure that African Americans and all minority voters would not be discriminated against at the polls.

The law took a particularly active approach to dealing with an enormous challenge. It created a formula to identify states and locales where voting was polarized by race and then added additional safeguards to changing voting laws there. Section 4 of the law created that so-called “coverage formula,” and coupled it with a preclearance requirement in Section 5. That requirement mandated that state and local governments falling within the coverage formula get explicit approval from the Department of Justice before changing voting laws.

The law also maintains provisions to ensure that race-based discrimination does not happen and places redistricting requirements on states to ensure minority representation, among other protections. But the preclearance requirement and coverage formula took the center of attention in an infamous Supreme Court ruling in 2013. That case, Shelby County v. Holder, struck down the coverage formula and ended the preclearance system as it existed at the time. Justice Roberts, who wrote the 5-4 opinion, concluded that the law employed “extraordinary measures to address an extraordinary problem,” but that those measures are no longer needed. He went on to argue that the coverage formula used to determine which areas require preclearance now violates states’ rights and equal sovereignty as laid out in the 10th Amendment.

Since that ruling, governments have been free to change their voting laws as they see fit without the need for preclearance from the Justice Department. And that brings us to the recent challenge in North Carolina.

The North Carolina Ruling

Judge Motz notes in the ruling that between 2000 and 2012–a period when preclearance was needed for to all statewide and many local voting law changes in North Carolina–registration and participation surged among black voters. By 2012, black voter registration had increased by about 50 percent and turnout nearly reached parity with that of white voters, at about 70 percent. But shortly after the Supreme Court issued its Shelby County ruling, the state assembly began the process to overhaul its voting laws. According to the ruling, the new law would have several effects on black voters in the coming November election:

In this one statute, the North Carolina legislature imposed a number of voting restrictions. The law required in-person voters to show certain photo IDs, beginning in 2016, which African Americans disproportionately lacked, and eliminated or reduced registration and voting access tools that African Americans disproportionately used.

In cases like this, it is particularly difficult to prove that a legislature acted with discriminatory intent, but the court concluded that there was enough evidence to indicate that race was central to the new law. That holds true, according to Motz, even if it was done for partisan reasons and not outright racial hatred or racism. The ruling notes that almost immediately after the Shelby County opinion came down in June 2013, the North Carolina legislature began drafting new voting restrictions. It also notes:

Before enacting that law, the legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.

This indicates that shortly after the state did not need preclearance to pass a new voting law, it looked into how certain voting practices related to race, and then passed a new law limiting certain practices. Based on that sequence of events, the court ruled there was clear intent to discriminate based on race.

Going Forward

While the ruling effectively struck down the law, the court declined to use another section of the Voting Rights Act to impose a preclearance requirement on North Carolina after finding discriminatory intent. Essentially, it chose not to reinstate the preclearance requirement on the state using a different part of the VRA. As Rick Hasen–a law professor at University of California, Irvine–notes in a blog post, the state can still appeal the ruling to the Fourth Circuit en banc, which means that all of the judges, not just the original panel of three judges, would review the case. It could also appeal to the Supreme Court, but as Hasen notes, the court may not decide to hear the case given its current eight justice makeup and the Circuit Court’s decision not to implement a preclearance requirement.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

The post Why A Circuit Court Struck Down North Carolina’s Discriminatory Voting Law appeared first on Law Street.

Virginia Governor Terry McAuliffe received fierce opposition from Virginia republicans when he released an executive order in late April to restore voting rights to over 200,000 ex-felons. McAuliffe’s opponents argued that he was overstepping his restoration powers in his capacity as governor and that he only had the power to restore voting rights on a case-by-case basis. On July 22, the Virginia Supreme Court ruled that he had indeed overstepped his constitutional powers in a 4-3 decision, shooting down his blanket restoration move. 

When he first took up the fight to restore voting rights for released felons, McAuliffe—who has historically been engaged in national democratic politics as former Chairman of the Democratic National Committee and co-chairman of Hillary Clinton’s 2008 presidential campaign—was criticized for using restoration as a political tool. With one in five adult African-Americans being disenfranchised in Virginia, republican opponents argued that McAuliffe was trying to “unlock” the minority vote in the wake of the 2016 presidential election.

McAuliffe starkly denies this. Rather, he claims that any citizen who has completed the full term of their sentence shouldn’t be disenfranchised. McAuliffe aims to relieve some of the ex-felons’ burden by restoring voting rights, as disenfranchisement is one of the most significant collateral consequences facing prison releasees.

While the Howell v. McAuliffe decision is certainly a setback, McAuliffe isn’t done with his battle for voting rights quite yet. In a statement released following the July 22 decision McAuliffe promised that he will still pursue restoration. The governor will individually sign 13,000 restoration orders this month and will not stop signing restoration orders until all affected individuals reclaim their right to vote.

Virginia is one of less than ten states that still disenfranchises felons who have completed all terms of their sentence, and is one of less than five states where over 20 percent of African-American adults are disenfranchised. Thus felon disenfranchisement—in addition to the disproportionate incarceration of African-Americans—has the innately undemocratic effect of suppressing minority votes and minority voices.

McAuliffe holds that his action is unpartisan, that he is acting to alleviate the intense injustices that have plagued Virginia’s past. He holds that voting rights ensure certain citizens aren’t being unfairly targeted and excluded from the democratic process.

During his tenure, McAuliffe has championed many issues of inequality. Such instances include initiating preschool programs in impoverished schools/communities, vetoing multiple pieces of legislation aiming to restrict abortion access, and more. The closing sentiment of his statement on the voting rights case sums up the progressive governor’s spirit: “The struggle for civil rights has always been a long and difficult one, but the fight goes on.”

Ashlee Smith

Ashlee Smith is a Law Street Intern from San Antonio, TX. She is a sophomore at American University, pursuing a Bachelor of Arts in Political Science and Journalism. Her passions include social policy, coffee, and watching West Wing. Contact Ashlee at ASmith@LawStreetMedia.com.

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Oregon became the first state in the nation to automatically register voters using information collected at the state’s DMV with a law passed on Monday. This law marks another step forward in lowering barriers to voting in Oregon. The state implemented a vote-by-mail system 17 years ago and consistently has one of the highest voting rates among U.S. states.

Under the new law, every voting-eligible citizen who visited the DMV since 2013 will now be sent a ballot at least 20 days prior to an election. Currently only about 73 percent of eligible voters are registered in Oregon, with roughly 800,000 eligible Oregonians not registered. This law will dramatically reduce the number of unregistered citizens, as estimates project that it could lead to the registration of 300,000 people, bringing the total number of registered voters to 2.5 million. Oregon’s current voting system is conducted almost completely by mail; registered voters receive a ballot a couple of weeks before the election that they fill out and return. Under the new law, the number of people that will receive ballots will dramatically increase.

While federal law requires every state to allow registration at the DMV, doing so still requires citizens to opt in. Oregon’s new law will automatically register people and then send them a card allowing them to opt out. All new voters will be registered as unaffiliated with a political party, but will have the option to declare their affiliation at any point. Check out the Oregonian’s Q&A for more information on the specifics of the law.

While registering more people to vote seems like a win for democracy, the law is not without its opponents. The vote on the law split along party lines. Not a single Republican supported the measure, but because Democrats hold the majority, it passed. Opponents made several arguments against the bill including privacy concerns, raised questions about the security of information transfers, and even claimed that it challenges peoples’ freedom.

Let’s first take a look at the argument that automatically registering citizens to vote will in some way restrict freedom, or as Governor Tim Pawlenty put it when he vetoed a similar plan in 2009, “registering to vote should be a voluntary, intentional act.” Registering to vote is not the same as actually voting. The Census Bureau’s Current Population Survey found that in the 2010 midterm elections roughly 65 percent of the population was registered to vote, but only 45.5 percent actually did so.

Simply registering people to vote will not force them to vote, and it may not even lead to a significant increase in voter turnout. However, Oregon has a particularly high voting rate due to its mail-in system, as only three percent of registered voters did not vote in the previous election. That holds true for other states like Colorado, which like Oregon, started sending every voter a ballot before an election and then saw greater participation. Increasing the number of citizens who receive ballots in the mail may actually help increase the United States’ very low turnout rate.

It is clear that simply registering someone to vote will not coerce them to vote, but it helps allow people to participate if they so choose. This could be particularly helpful if someone decides to vote close to election day. Oregon law requires all voters to register at least 21 days before each election, so if you are not registered to vote before that window you are ineligible to participate. However, if someone were already registered through the automatic system then they would be able to vote without previously taking action.

Opponents of the law have also started to question the ability to transfer information securely from the DMV to the county clerk in order to update voter registration records. It is important to note that only voting-related information is transferred, including a person’s name, age, residence, citizenship, and signature, which is what the state’s voter registration card requires. The only truly legitimate concern of the law’s opponents is the fact that voter files become public, meaning that people with proper cause can access basic information about people.

Automatically making this information public may be somewhat concerning, but it is important to note that your personal information is already accessible in many ways. Finally, if people do not want their information public, they still have the option to opt out within 21 days of visiting the DMV by using a card that is automatically mailed to them. Furthermore, the DMV cannot transfer information to the county clerk until after the 21-day window has closed. This means that if someone is genuinely concerned about having a public voter file, he can simply decide not to go through with registration. The only difference here is that the burden will now be on citizens to opt out rather than opt in to registration.

This law will also help prevent voter fraud and ensure that people’s voter files are properly updated in order to prevent them from being disqualified to vote. A registration system that goes through the DMV will require people to actually document their citizenship rather than simply declare it on a registration card, as was previously necessary. Because people’s information will be updated whenever they visit the DMV they will not have to worry about their address being out of date. According to a Pew Charitable Trust project, incorrect information in voter files is a significant problem, as roughly on in eight voter registrations is significantly inaccurate or no longer valid, including over 12 million records that contain incorrect addresses nationwide. Oregon’s new system will help prevent these inaccuracies and will ensure that if people want to vote they will be able to.

Finally, it is important to acknowledge that both political parties have a significant interest in the number of registered voters. Republicans are typically associated with measures to increase voting security, through supporting stricter voter ID laws and opposing easier registration, calling for a crackdown on voter fraud. However, voter fraud is in fact extremely rare and these efforts are likely politically oriented, as they largely benefit from the status quo. On the other hand, Democrats have a lot to gain from increasing turnout because the people who do not vote tend to be Democrats. While there are clear political motivations for both parties, I have to side with those who want to expand voting rights rather than limit them. Oregon’s bill is a win for democracy, and hopefully other states will follow its lead in eliminating the barriers to political participation.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

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President Obama stirred up an old debate recently by becoming the first sitting president to endorse statehood for the District of Columbia. Obama expressed his full support: “I’m in DC, so I’m for it…Folks in DC pay taxes like everybody else. They contribute to the overall well being of the country like everybody else. There has been a long movement to get DC statehood, and I’ve been for it for quite some time.”

Here’s what you need to know about Washington DC’s contentious battle for statehood, what it would mean for District residents, and what impact it would have on the country.

Why was the District of Columbia created?

To understand the arguments for statehood, you have to understand the history of Washington, DC. The District of Columbia was specifically created to house the federal government. The authors of the Constitution wanted to house the federal government in its own jurisdiction after witnessing the problems of having the nation’s temporary capital in Philadelphia. The decision was made in 1787 following an incident in which the governor of Pennsylvania refused to disperse rioters threatening Congress in Philadelphia. The framers did not want the federal government to be subject to any decisions of a specific state or governor. So, the delegates wrote Article 1, Section 8 of the U.S. Constitution to outline Congress’ control over the district:

“[The Congress shall have Power] To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States.”

Congress moved to a new federal capital in 1800, and the District still stands today on land ceded by Maryland. Residents of the District face a number of unique circumstances because it is not a state.

Originally, DC residents were barred from voting for president. It was not until 1961 that the passage of the 23rd Amendment finally secured three electoral votes for the District. DC residents also elect one non-voting member to the House of Representatives.

The District of Columbia has operated under a system of Home Rule since 1973 as a way to better govern local affairs. Home rule means that DC is allowed a local government, including a directly elected mayor and city council. Still, Congress has the ultimate authority and the power to overturn any laws passed by the local government.

Why do people push for DC statehood?

Right to Vote

Residents of DC express outrage that they pay federal and local taxes, are subject to the same laws as everyone else, fight in wars, and serve on juries, yet they lack the same Congressional representation. The argument is also made that this disenfranchisement comes from a legacy of racism aimed at the District’s majority African-American population. Those in favor of statehood want the full rights of being an American citizen, which includes full representation in Congress as well as full control over local affairs. In addition to lacking voting power, DC’s representative in Congress is denied a federal salary and an office. License plates in DC decry residents’ lack of status with the slogan “Taxation without Representation.” Watch President Obama’s remarks on DC statehood below:

Local Control

Many citizens are fed up with the limitations of DC’s Home Rule. Since Congress can overturn any law, it has exerted its power on a number of issues passed by DC residents. Congress has intervened to restrict abortions, to prevent restrictions on firearm ownership, and even to control marijuana issues. Congress has also barred DC from using local tax dollars on specific things, such as statehood advocacy and needle exchange programs.

Taxes

Citizens claim they do not have enough financial resources to pay for high-quality public services. Although DC is not a state, it has all the financial burdens of one. It provides local services, like public schools and a police force, but it also provides services typically dealt with at the state level, like mental health and Medicaid. DC has limited taxing powers. The District cannot tax income earned within its borders by non-residents, even though all other states have that power. Two-thirds of income in the District is made by people who do not live in the District, yet they pay no income tax.  Additionally, the federal government, embassies, and non-profits that occupy most of DC pay no property, sales, or income taxes. The small size of the city and disproportionate number of low-income workers with higher needs for public services strain the District financially. Still, DC residents pay the highest federal taxes per capita.

Growing Population

Washington DC’s fast-growing population of approximately 650,000 — larger than Wyoming or Vermont — is large enough to make it a state. According to the Washington Peace Center, DC as a state could bring in more than $2 billion a year in additional revenue. This would allow the local government to cut taxes and better fund schools and services. Freeing itself from Congressional oversight would also make the district more efficient. Watch more about the DC statehood movement below.

Shutdowns

The 16-day federal government shutdown during Fall 2013 illustrated issues with DC dependency on federal funds and approval. DC Mayor Grey did not shut down local services but suspended some payments so the city could remain operational. Mayor Grey warned that vital city services were dangerously close to ending as the city’s emergency funds were depleted. Allowing DC the autonomy of statehood would prevent these issues in the event of a federal government shutdown.

Legally, how would statehood be achieved?

Despite President Obama’s supportive statement, making DC a state is unfortunately not within his power. There are a couple of avenues that the District of Columbia could take to obtain statehood.

Constitutional Amendment

There is some debate as to whether an amendment could make DC an official state, but it could definitely give DC’s residents much greater rights and further define the area of the federal district. Two-thirds of Congress would have to approve a matching constitutional amendment. Alternately, two-thirds of state legislatures could call a Constitutional Convention. The amendment would then be sent to the states for ratification by three-fourths. Naturally this process would be very difficult. A proposed amendment in 1985 to give DC more voting power was only ratified by 16 states in the allotted seven-year span. Further, critics point out that any constitutional amendment could later be repealed.

Law

Article 4, Section 3 of the Constitution outlines the creation of new states.

“New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”

Under this section, an act of Congress could make DC its own state with a simple majority vote and signature from the President. This was the same process followed by Hawaii and Alaska as recently as 1959. There is some question as to whether Maryland would need to approve statehood, since DC was formed on land from Maryland. Still, bills are introduced to Congress nearly every year, but none has been brought to a vote since 1993. Most Congressional leaders like the idea of admitting states as pairs, so there is a good chance any vote to make DC a state would also include a bid of statehood for Puerto Rico.

Proposals for giving DC Congressional representation are much more common than bills for complete statehood. These bills have not been met with success. Some contend that giving District residents the right to vote may not even be within Congress’ power.

What are the current proposals?

Previous campaigns for statehood have referred to the new state as “New Columbia,” and the name is still associated with the movement today. The New Columbia Admissions Act was introduced in 2013 before failing to make it out of committee. The Act closely follows the proposed constitution ratified by DC voters in 1982. The plan would create a new state while still keeping a much smaller area of DC a federal district. The area of the federal district would shrink substantially, but would include all important federal buildings like the Capitol, White House, and Supreme Court. The Constitution sets an upper limit on the size of the District at 10 square miles, but no lower limit is set. All of the other residential land currently in DC would then become the 51st state. New Columbia would be granted the same rights as any other state in the Union.

To advance its agenda, the District of Columbia still selects members to a shadow congressional delegation that lobbies Congress to grant statehood and voting rights. The positions were authorized by a “state” constitution in 1982 authorized by voters, but this delegation is still not recognized by Congress. Numerous groups in DC continue to lobby for statehood. Watch DC Congresswoman Eleanor Holmes Norton speak on statehood below.

What are the arguments against statehood?

In Federalist No. 43, James Madison argued that the District of Columbia needed to be independent for maintenance and safety concerns. Madison wrote,

“A dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy.”

Arguments against statehood today follow similar lines. Americans are concerned that the federal government would be dependent on a single state to cover its security and general operations. With such great power, a state could restrict the federal government in ways that would not be beneficial to the rest of the nation. However, the plan to keep important governmental buildings as a federal district largely mitigates these concerns.

The uniqueness of the DC area makes statehood very difficult politically. Some of the arguments opponents have:

• Similar to all states with relatively small populations, DC’s small size and population would give it an unfair influence in politics.
• The liberal area would be a stronghold for Democrats, and DC would always send Democrats to Congress.
• The interests of the District would be dominated by the federal government, since it would be the state’s largest employer by far.
• The state would be the only one without rural residents. This means the representatives would share none of the interests held by non-urban areas.
• A state could enact a commuter tax on non-residents who come to the state to work. Such a tax is currently banned under Home Rule.
• The constitutional question of whether the state of Maryland would have to consent to the new state, since the district was formed on land granted by Maryland.
• Some people flat out do not want to witness a strange-looking flag with 51 stars. But not to worry, numerous 51-star flags have already been designed, and they don’t look too bad.

Courtesy of jacobolus via Wikipedia

Are there any other alternatives to statehood?

Most citizens in favor of DC statehood oppose settling for anything less. Some propose bills to grant voting representation to members of DC, such as simply allowing DC’s representative in the House of Representatives the power to vote. Others worry these laws could be undone by the next Congress — and Congress may not even have the authority to make such a law.

Others propose some sort of tie with Maryland. This could mean parts of DC being given back to Maryland. However, neither Maryland nor DC really want to merge. A less drastic solution is Congress restoring the voting rights of District residents by allowing them to vote as a part of Maryland while maintaining the integrity of the District. Still, residents want voting as well as increased autonomy over local affairs.

Issues over DC statehood will not soon be resolved unless residents can be better provided some method of true representation. Most recently in the never-ending saga of DC residents, issues arose with DC driver’s licenses not being considered a valid form of ID by uninformed TSA agents. The good news is DC statehood would likely make the lives of TSA agents much easier.

Resources

Primary

Senate: New Columbia Admission Act

The District of Columbia: Statehood

Additional

Week: Obama Endorses Statehood for Washington, DC

Daily Caller: Obama Endorses DC Statehood

Huffington Post: Let’s Settle This Once and for All: DC Statehood is Constitutional

New Columbia: Vision

Brookings: If the District of Columbia Becomes a State: Fiscal Implications

Neighbors United for DC Statehood: FAQs

Mother Jones: DC: The 51st State?

Washington Post: Budget Deal Reminds DC That Congress is Still in Charge

Washington Peace Center: DC Statehood: A Primer

Brookings: A Sound Fiscal Footing for the Nation’s Capital

Hill: Denying DC Statehood Continues Federal Overreach

Smithsonian Magazine: Designing a 51-State Flag

Hill: DC Delegate to Meet with TSA

Leadership Coalition: Why DC Voting Rights Matter

Alexandra Stembaugh

Alexandra Stembaugh graduated from the University of Notre Dame studying Economics and English. She plans to go on to law school in the future. Her interests include economic policy, criminal justice, and political dramas. Contact Alexandra at staff@LawStreetMedia.com.

The post The 51st State: What DC Statehood Would Mean for the Country appeared first on Law Street.

Update: August 5, 2014

Last night, in an incredibly heated runoff election, Mississippi Senator Thad Cochran narrowly defeated his Tea Party challenger, Chris McDaniel, by 6,600 votes. This was a come-from-behind victory for Cochran and practically guarantees him a seventh term that many never thought he would see. This is a win for Republican establishment figures, who are still reeling from the defeat of Eric Cantor just two weeks ago. Cochran’s victory will be finalized as soon as McDaniel decides to concede, but that could take a while given he is considering legal action.

In order to understand why a legal challenge may be fair here, it’s important to understand what exactly happened in the primary. McDaniel is upset because of the methods Cochran employed to win the race. Cochran knew he was trailing among the Republican voters, so he turned to Independents and Democrats for support. In Mississippi, that essentially meant appealing to the African American population. Cochran courted African American voters by playing up his credentials as a veteran senator who knows how to bring money into the state. At the same time, he showed them how he would be a better option overall than McDaniel. You can watch this video to see some African American voters explain their decision to support Cochran.

His strategy worked fantastically, with African American turnout up almost 40 percent in the 24 counties with an African American majority. So, the question now becomes, why does this increased African American turnout have McDaniel considering legal action?

Under Mississippi Law, any registered voter may vote in a primary election, but they must have the intention of voting for the winner of that primary in the general election. The law reads, “no person shall be eligible to participate in any primary election unless he intends to support the nominations made in the primary in which he participates.” Looking beyond the glaring naiveté of this law, it is easy to see McDaniel’s complaint. It is improbable that the African American voters who voted for Cochran would vote Republican in the general election.  In his “anti-concession” speech McDaniel declared, “today the conservative movement took a backseat to liberal Democrats in Mississippi.” Ray Nicholson, the founder of the Mississippi Tea Party, claimed, “this is such a perverting of a fair election system that we are outraged the secretary of State has not stepped in.”

McDaniel was concerned enough about the African American vote to have supporters watch the polls to make sure fraud did not ensue, which caused the NAACP to install their own poll watchers. Thankfully, this had little effect on voter turnout for the election, but the whole ordeal felt like a battle to keep African Americans from voting. Some McDaniel supporters have called Cochran’s move dirty politics, but McDaniel’s move to limit free voting is even dirtier.

Looking at Mississippi’s primary law, it is possible to see where McDaniel could present a legal challenge, but it is very hard to imagine any way in which he could win it. McDaniel would obviously claim that many of the African Americans who voted for Cochran would not vote for any Republican in the general election, meaning that they should not have been able to vote in the party’s primary. But this is a nearly impossible law to enforce without seriously infringing on a person’s right to vote. For one, the general election is four months away. It would be easy for a voter to say they do not know who they would support for that election or to just pretend they intend to vote for the winner. There is no plausible way to enforce this law on a mass scale. Therefore, McDaniel, if he insists on blaming someone for his loss, should blame the Mississippi primary system. And then he should stop being a sore loser and just concede.

Update: A week after his loss, McDaniel still has not conceded. He is currently fundraising for a legal challenge, asserting that Cochran stole the election. In his fundraising pitch, McDaniel wrote, “last week’s runoff election was a sham, plain and simple.” A representative for the Cochran campaign brushed off the legal challenge, saying this is most likely an effort to pay off campaign debts. The representative called McDaniel’s efforts “pure sore loserism.”

Update: It’s been well over a month, but Chris McDaniel has still not let his loss to Thad Cochran go. Yesterday, McDaniel announced that he will formally challenge the results of the runoff election. McDaniel is demanding that the Central Committee of the Mississippi GOP–a sort of governing body made up of 52 members–vote at a public hearing to declare him the winner. If this does not happen, he will consider a challenge in court. McDaniel is claiming that there were 15,000 ballots cast by ineligible voters, meaning voters who did not intend to vote for the winner of the Republican primary in the general election. Voting in a primary but not intending to vote for the winner of the primary in the general election is against the law in Mississippi. McDaniel lost by 7,667 votes, so if he those 15,000 votes are dismissed, he will win.

While it is easy to understand the logic of McDaniel’s anger, it is still misplaced anger. Most of these 15,000 “ineligible votes” were cast by Democrats who did not vote in the Democratic primary. So while these Democratic voters might have no plans to vote for Thad Cochran, there is no way to prove it. In fact, many voters from both political parties may not vote in the general election, including McDaniel supporters, because Thad Cochran is going to win easily. So unless McDaniel can also prove every single person who voted for him will vote for Cochran in the general election, I suggest he focus his efforts on election reform. He should have a lot of time to do so, because its highly unlikely he is going to be a United State’s Senator.

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Matt DeWilde (@matt_dewilde25) is a member of the American University class of 2016 majoring in politics and considering going to law school. He loves writing about politics, reading, watching Netflix, and long walks on the beach. Contact Matt at staff@LawStreetMedia.com.

Featured image courtesy of [Joe Shlabotnik via Flickr]

Matt DeWilde

Matt DeWilde is a member of the American University class of 2016 majoring in politics and considering going to law school. He loves writing about politics, reading, watching Netflix, and long walks on the beach. Contact Matt at staff@LawStreetMedia.com.

The post Sore Loser: McDaniel Challenges Weird Mississippi Primary Laws appeared first on Law Street.

Attorney General Eric Holder shined a spotlight on state voting laws this week when he spoke out against voting bans for felons. The laws vary across states, with the harshest in Florida, Iowa, Kentucky, and Virginia where felons are banned from voting for life, with the exception of individual permissions granted by the governor. Other states require ex-convicts to abide by a waiting period prior to regaining the vote, and others still have long and complicated re-registration procedures. To prove the severity of these laws, Holder pointed to Florida where anti-felon suffrage regulations ban 10 percent of the citizens from voting.

While a significant portion of the country is barred from voting, even after they finish their time in prison, these laws also disproportionately affect minorities. African-Americans encompass a third of the approximately 5.8 million Americans who are barred from exercising their voting rights. Holder emphasized the large number of minorities affected by these restrictive laws, stating that they are remnants of the discriminatory policies enacted after the Civil War in order to keep minorities from going to the polls. And unfortunately their efforts were successful: 1 in 13 African-Americans are disenfranchised due to anti-felon voting bans.

Due to these, and other, restrictive policies, any attempt to protect minority voting rights is important, especially after key provisions of the Voting Rights Act of 1965 were declared unconstitutional in a 2013 Supreme Court Ruling. The decision deemed Section 4 unconstitutional, which determined states with histories of voting discrimination would have to submit any changes to their voting laws to be pre-approved by the Attorney General. Without the coverage formula, states are able to pass discriminatory voting laws and the federal government cannot prevent the laws from going into effect.

In this context, the Voting Rights Act’s power is minimized, and any legislation that could help restore some minority voting rights would be welcome. Senator Rand Paul is currently drafting a bill that, if passed by Congress, would give many felons the right to vote in federal elections. However, Paul’s bill still contains restrictions: the proposed legislation restores the vote specifically to non-violent felons, which is a compromise with other legislators who are hesitant to restore these rights in the first place.

Holder also noted that the laws preventing ex-convicts from voting only enhances the stereotype and social stigma surrounding felons. Laws affecting felons, such as these restrictive voting ban, increase the feeling of separation from the rest of the community and increase the likelihood that felons will commit further crimes. Treating ex-convicts as second-class citizens is neither the proper nor the most successful way to reintegrate them into their communities.

These laws teach others that there are no second chances in American justice: once a convict, always a convict. Some may think that this is a good message to send, and that such laws could dissuade citizens from committing crimes in the first place. However, this philosophy mistakenly precludes the possibility that once felons finish their time, they could serve some benefit to the community. If societal attitudes continue to influence felons to go back to jail, states miss out on the potential for these people’s efforts to contribute to the workforce and other communal needs. By getting rid of some of the restrictive laws on felons after they return to normal life, they can better return as contributing citizens.

While Mr. Holder has no authority to enact changes to the laws himself, congressmen and state legislatures should listen up.

[Washington Post] [New York Times] [SCOTUS Blog] [The Hill] [Politico]

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Sarah Helden (@shelden430)

Featured image courtesy of [Daniel Lobo via Flickr]

Sarah Helden

Sarah Helden is a graduate of The George Washington University and a student at the London School of Economics. She was formerly an intern at Law Street Media. Contact Sarah at staff@LawStreetmedia.com.

The post Holder Speaks Out Against Felon Voting Ban appeared first on Law Street.