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Washington Lawyer

From the President: Whither Lawyers’ Role in Championing Voting Rights?

From Washington Lawyer, September 2012

By Tom Williamson

Tom Williamson. Photo by Patrice Gilbert.

This summer I went home to California to celebrate my mother’s 90th birthday. Winifred Williamson is the genially proud matriarch of our family. She has persevered, in a good–humored manner, through being racially identified as colored, Negro, black, and now African American.

As is typical of this sort of family–
landmark event, I used the toast in honor of my mother’s extraordinary life to reflect on what had changed for the better in America since she was born in 1922. That retrospective, of course, included commentary on the milestones of the civil rights movement during the past 90 years and a nod to the role that lawyers had played in the process.

The Voting Rights Act of 1965 certainly qualifies as one of those milestones worthy of celebration, yet I found myself wondering if today’s controversies surrounding the right to vote, especially voting rights of people of color, signal a troubling shift away from the ideals of racial inclusiveness that inspired the call for remedial federal legislation in the 1960s. Specifically, my concern stems from recent litigation that has been spawned by newly enacted voter identification laws and the more longstanding restrictions that most states place on the voting rights of individuals entangled in the criminal justice system.

In 2011 and 2012 alone, 11 states—Alabama, Kansas, Mississippi, New Hampshire, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Virginia, and Wisconsin—have passed new voter ID laws that require citizens to produce photo identification to exercise their right to vote. The ostensible purpose of these laws, to protect against voter fraud, is facially legitimate. However, the U.S. Department of Justice and numerous civil rights organizations have objected vociferously on the ground that these new laws will disproportionately prevent people of color from being able to exercise their right to vote. Because of the federal preclearance process under the Voting Rights Act and pending litigation in federal and state court, several of these new laws are currently not being allowed to take effect.

Media coverage of the new voter ID laws has portrayed the pending litigation as a battleground for partisan, tactical maneuvering. The conventional wisdom is that the new laws will tend to favor Republican candidates. The premise is that minorities are more likely to vote Democratic; therefore, if the new laws reduce minority turnout, Republican candidates will be the beneficiaries. Social scientists who have studied this issue seem to agree that these laws will disproportionately reduce minority turnout, but there is disagreement about whether the reduced turnout will have a material effect on the outcome of elections in November.

Michelle Alexander’s recently published book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, poses a more provocative and profound question about the disenfranchisement of minority voters, particularly African American men who have been convicted of crimes. Ms. Alexander contends that one of the most odious badges of the Jim Crow era—the denial of the right to vote—has been resurrected since the 1980s as a result of the mass incarceration of African American men, largely driven by the so-called “War on Drugs.” Through the operation of laws in many states that prohibit voting by individuals who are incarcerated, and laws in some states that bar convicted felons from voting even after having completed their prison sentence, a substantial portion of the black male population has effectively been disenfranchised. (In the District of Columbia, people can vote so long as they are not serving time on a felony; however, there is a 10-year ban on jury duty service for convicted felons.)

It is well known that minorities, especially African American and Hispanic men, disproportionately populate America’s prisons; accordingly, disenfranchisement by virtue of criminal status falls disproportionately on people of color. The Justice Department estimates that more than 650,000 people are released from prison each year, a substantial portion of whom are either African American or Hispanic men.

Ms. Alexander argues that, as a consequence, we are ensuring “civic death” for millions of minorities whose past has been tainted by involvement with the criminal justice system. She laments the absence of any broad-based political or social movement, akin to the 1960s’ civil rights movement, advocating for the enfranchisement of “the criminal element.” In her view, that is because “felon” or “criminal” has become a surrogate reference to men of color who are deemed to be social outcasts or undesirables. The racial motive Ms. Alexander attributes to the legal system of disenfranchisement based on one’s classification as a felon is provocative and controversial. However, regardless of whether one is persuaded by Ms. Alexander’s underlying theory, the disproportionate, adverse racial consequence of the system, whether actually intended or not, is undeniable.

Members of our bar will no doubt play a variety of roles in sorting through these contentious disenfranchisement issues, and that, of course, is the nature of our adversary system. Presumably there is still a consensus that participating in elections should be a right that binds us as a democratic society and reinforces the value of civil engagement among all elements of our diverse citizenry. The partisan polarization surrounding the recently enacted voter ID laws and the abiding indifference to the disenfranchisement of our minority population enmeshed in the criminal justice system suggest that we have drifted far afield from the lofty ideals and the pursuit of racial reconciliation that motivated the Voting Rights Act. Regrettably, we still have a considerable distance to travel on our journey to “post-racial” enfranchisement of all American people, and it remains an open question whether lawyers will be best remembered as facilitators or obstructionists of that journey.

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