New and events of the Philadelphia Bar Asso.
Issue link: https://thephiladelphialawyer.epubxp.com/i/434516
from the editor Under Siege B Y M . K E L L Y T I L L E R Y D emocracy is under siege in this nation. Not by ISIS, Khorasan, Al Qaeda, Ebola or Putin. Rather by an insidious domestic threat as serious as the internecine war that 150 years ago tested whether this nation or any nation conceived in liberty and dedicated to the proposition that all men are created equal could long endure. Fortunately, this nation did endure that challenge to our democracy – at an astonishing price in blood and treasure. While that threat to the foundation of the republic was as open and blunt as possible, the modern equivalent is much more subtle, clever and thus, nefarious. Some say that the infection of our electoral process by big (and dark) money permitted by Citizens United v. FEC, 558 U.S. 310 (2010) or the relentless systematic gerrymandering of congressional districts permitted by Vieth v. Jubelirer, 541 U.S. 947 (2004) alone or together are the greatest dangers to our sacred democracy. While each in its own way is reprehensible, and part of a larger, well-organized effort to prevent as many people as possible from voting one way, the most abhorrent threat is the nationwide effort to directly actually disenfranchise eligible voters. The most fundamental right in a democracy – the right to vote is, for millions, in grave danger. Our history includes stunning examples of substantial enfranchisement, all by constitutional amendment remedying past disenfranchisements based upon certain criteria – 15th Amendment (1870) – "color, race, or condition of servitude"; 19th Amendment (1920) – "sex," and 26th Amendment (1971) – "age" (18 years or older). And, of course, the 24th Amendment (1964) which prevented disenfranchisement "by reason of failure to pay any poll tax or other tax." Each was required, along with scores of enabling acts and judicial decisions, because our system, while paying lip service to universal suffrage, has from its inception been undermined by a never-ending series of legal and extra-legal schemes to prevent certain groups from voting. Not coincidentally, my own first effort to cast a ballot, here in Pennsylvania, met with the arcane and cumbersome laws designed to prevent young, liberal students from voting. I turned 18, voter-eligible, just a month before the 1972 McGovern- Nixon presidential contest wherein the war in Vietnam was the central issue. Because I had resided in Pennsylvania for less than 90 days, I was caught between the parochial absentee voting requirements of my state of origin, Louisiana, and the restrictive residential requirements of my new home state, Pennsylvania. At the polls in Swarthmore, some haughty, blue- haired matron coldly told me I could go to court in Media, try to convince a judge that I should be able to vote, get an order and come back and maybe the polls would still be open. In my then naiveté, I actually thought Pennsylvania might be different than Louisiana. Not so much. I would have preferred a literacy test or a poll tax. Modern voter suppression, dilution and disenfranchisement takes many and varied forms, all of which fit, however, into five categories (1) voter identification requirements, (2) time and location restrictions, (3) attacks on voter registration, (4) "purging" voter rolls and (5) barring felons from voting. Not to mention, also blocking meaningful immigration reform. The Disenfranchisers are as relentless as they are creative in finding new ways to legislate disenfranchisement. And, yes, they are here in the Commonwealth of Pennsylvania. In 2008 a divided (6-3) U.S. Supreme Court upheld an Indiana voter suppression law requiring government-issued photo identification at the polls, holding that "even-handed restrictions" protecting the "integrity and reliability of the electoral process itself" pass constitutional muster. Crawford v. Marion County Election Board, 553 U.S. 181 (2008). At least 16 states have such requirements and more are planned. It should not be surprising that this same "facially neutral" reasoning was used often by the court more than 100 years earlier to uphold a variety of legal disenfranchising statutes. And in 2013, an even more divided court (5-4), led by the new Four Horsemen (Roberts, Scalia, Alito and Thomas), emasculated The Voting Rights Act of 1965 reaching the tone deaf conclusion that "things had changed dramatically" and thus there was no longer a need for the federal government to approve voter restrictions in Southern states. Shelby County v. Holder, 557 U.S. 193 (2013) Au contraire, mes amis. While litigation will always be an avenue to challenge the Disenfranchisers, we obviously cannot rely upon the courts 4 the philadelphia lawyer Winter 2015