The Constitution and Democracy: What in the Election is Going On?!

On this blog I answer questions regarding Constitutional issues of significance in the democratic process. Archived articles focus on legal issues arising out of the passage of Act 10 in Wisconsin. Questions can be submitted to me directly at While I will endeavor to answer all legitimate questions submitted, I reserve the right to ignore questions that are vague, overly argumentative, or outside of my areas of expertise. When I post an answer to a question, I will also note on facebook and twitter that I have added a post to this blog. I can be followed on twitter as amfhoeschen.

Monday, August 1, 2016

Getting to Know the Fourteenth Amendment (and its progeny, Voting Rights)

The last week has been a busy one for the U.S. Constitution, particularly the Fourteenth Amendment and its equal protection clause. The Fourteenth Amendment made a national appearance at the Democratic National Convention in Khizr Khan's speech memorializing his son and rebuking Donald Trump, and went on to play a pivotal role in two federal court decisions declaring certain voting restrictions unconstitutional. In N.C. State Conference of the NAACP v. McCrory, the Fourth Circuit Court of Appeals found that North Carolina enacted its voting restrictions with discriminatory intent, which is a violation of the Fourteenth Amendment. In One Wisconsin Institute, Inc. v. Thomsen, the U.S. District Court for the Western District of Wisconsin found that some provisions of Wisconsin's voting restrictions were enacted with discriminatory intent, and some were not but still violated the Fourteenth Amendment because they had a discriminatory impact and burdened certain groups of voters too much, without justification. 

The "equal protection clause" of the Fourteenth Amendment is in the first paragraph: 
"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Even though the Fourteenth Amendment makes no mention of race, it has been the Constitution's oft-tested guardian of civil rights since its enactment following the Civil War. The courts have consistently interpreted the Fourteenth Amendment as prohibiting race-based classifications by all branches of municipal, state, and federal government unless the government can show a really, really good reason.

In recent decades, analyzing potential Fourteenth Amendment violations has become more complex, as politicians have learned that explicit race-based classifications are illegal. This is particularly true in the context of modern voting restrictions, which never explicitly restrict voting based on race, but often result in burdens that weigh more heavily on less-privileged members of society. The Wisconsin and North Carolina cases decided last week illustrate this. Both involved voting restrictions that placed more burdens on people who don't drive, move a lot, and have less flexible working hours, by implementing voter ID requirements, making voter registration more difficult, and narrowing opportunities to vote outside of election day. In neither case did the laws themselves reference race, but in both cases there was evidence that Republican lawmakers were motivated by a desire to suppress the votes of Democrats, and an awareness that minorities are a large Democratic voting bloc. In North Carolina, some lawmakers were explicit in their desire to roll back increased access to voting that had occurred specifically to remedy a history of racial discrimination at the polls. There was also evidence that lawmakers targeted voting methods that they knew were utilized disproportionately by African-Americans. In Wisconsin there was evidence that lawmakers had a specific desire to curtail voting in Milwaukee, which is known to be home to a majority of the state's African-American and Latino voters.

The lawmakers' knowledge of the outcome of the voting restrictions combined with their stated intent to target voters in ways that correlated with race, combined with the actual outcome of voter suppression resulted in the Fourth Circuit's finding in NAACP v. McCrory that the North Carolina law violated the Fourteenth Amendment: 
"Using race as a proxy for party may be an effective way to win an election. But intentionally targeting a particular race’s access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose. This is so even absent any evidence of race-based hatred and despite the obvious political dynamics. A state legislature acting on such a motivation engages in intentional racial discrimination in violation of the Fourteenth Amendment and the Voting Rights Act." 

In One Wisconsin Institute, Inc. v. Thomsen, the court's decision was more nuanced, as the evidence of intentional discrimination was not as clear. The decision would be a great - but long - reading assignment for a first-year Constitutional Law class, as it clearly explains "burden-shifting" analysis under the Fourteenth Amendment:
"The heart of the opinion considers whether each of the other challenged provisions unduly burdens the right to vote, in violation of the First and Fourteenth Amendments. This analysis proceeds under what is known as the Anderson-Burdick framework, which sets out a three-step analysis. First, I determine the extent of the burden imposed by the challenged provision. Second, I evaluate the interest that the state offers to justify that burden. Third, I judge whether the interest justifies the burden."

Burden-shifting is the foundation of any Constitutional analysis involving civil rights. A court weighs the government interest against the civil rights affected. If the government's interest is important and the rights affected are only somewhat important, the government can do something that restricts (burdens) that right. If the government's interest is kind of stupid, and the right is pretty important (like voting, or free speech) the government can't do much to restrict it. In any case, whatever the government does can't be stupid: The government action has to be designed to actually fix the problem the government identifies.

Keeping people from voting on the basis of race is never a valid government interest. So, for example, when the U.S. District Court in Wisconsin determined that the portion of the law that restricted hours for in-person absentee voting "was specifically targeted to curtail voting in Milwaukee without any other legitimate purpose" there was no need for the Court to do any further analysis. The Court found that "the legislature’s immediate goal was to achieve a partisan objective, but the means of achieving that objective was to suppress the reliably Democratic vote of Milwaukee’s African Americans."  End of analysis. That portion of the law violated the Equal Protection Clause, as well as the Fifteenth Amendment, which specifically prohibits laws that discriminate on the basis of race.

The Court did engage in full burden-shifting analysis to decide whether Wisconsin violated the Fourteenth Amendment by extending the residency requirement for voting from 10 days to 28 days. First, the Court found that extending the residency requirement imposed a "moderate burden" on voting. The state's purported reason for the change was to prevent non-residents from voting, but this was not a legitimate interest because the state provided no evidence of non-residents attempting to vote in the past. Finally, the State's weak interest in preventing non-residents from voting did not justify the burden on voters, because there was no evidence that lengthening the residency requirement would make it any harder for non-residents to vote.

The courts' decisions in NAACP v. McCrory and One Wisconsin Institute, Inc. v. Thomsen are both lengthy decisions addressing a range of voting restrictions. This post is merely a very brief explanation of the relevance of the Fourteenth Amendment to these decisions.

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