By Patrick Shelby
LAW WEEK COLORADO
University of Colorado Associate Professor of Law Doug Spencer is a constitutional law scholar and has worked as an expert witness in voting rights and campaign finance cases. He focused his Oct. 25 Colorado Law Talk “Why Do People Lack Power in a Democracy?” on the different ways people’s voting rights are being more marginalized than in years past.
Spencer holds a Ph.D. in Jurisprudence and Social Policy from the University of California, Berkeley. He also earned a J.D. at Berkeley Law and an M.P.P. at the Goldman School of Public Policy at UC Berkeley. Prior to law teaching, he was a law clerk at the Lawyers Committee for Civil Rights in San Francisco.
“This series was started in 2017 to share some of that research and to share the kind of programming and the kind of teaching that our students are fortunate enough to have,” CU Boulder Law School Dean Lolita Buckner Inniss said as she introduced the Oct. 25 evening program.
Spencer acknowledged there were an abundance of answers relating to the complex subject, and began his commentary by providing the online audience with a straightforward response to the topic in question.
“In part, the answer is really simple. And that is our Constitution, despite being written under the auspices of “We, The People” doesn’t provide a very robust protection of people’s right to vote or right to participate,” Spencer said.
Voting Rights History
Spencer showed virtual audiences an excerpt of Article 1, Section 2 of the U.S. Constitution. “… and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state Legislature,” he read aloud.
Spencer added, “This is the statement in the Constitution of 1789 that tells us who has the right to vote. The right to vote was not defined in the federal Constitution but power was given to each individual state to make that determination…”
He pointed out the Constitution’s language would recognize people’s right to vote by the states’ House of Representatives of each individual state. During the founding of the country, states limited voting in meaningful and deleterious ways, Spencer said.
Voting rights in America would have been vastly different if the Founding Fathers had considered them as a fundamental and universal right, he proposed.
For more than 200 years, the franchise has worked in the exact opposite direction and the ability to vote under the Constitution has been quite limited, according to Spencer, whose research also addresses the role of prejudice and racial attitudes in voting rights litigation.
The educator spoke about Section 2 of the 14th Amendment, ratified in 1868 in the wake of the Civil War. As the country was coming back together, the goal of the amendment was to resolve and reconstruct the U.S.
“States were told that they could not deny people the right to vote or else they would lose representation in Congress. Because there was concern that despite the end of the Civil War, states in the south that had been former slave states would continue to discriminate against black voters and prevent them from voting,” Spencer explained.
The expert witness in voting rights and campaign finance cases noted, there’s a phrase within Section 2 that states: ‘… except for participation in rebellion, or other crime…’ The idea was to prevent the expansion of the right to vote to people who are hostile to the U.S.
“… I raise this because this is a clause in the U.S. Constitution that the Supreme Court has looked at since 1974 to justify felon disenfranchisement. If states want to ban people from voting because they’ve been convicted of a felony — either currently serving in prison, on parole, on probation or even in some cases after that — the Supreme Court has said that’s okay, despite strong evidence that there is racial disparities, despite strong evidence that this isn’t the original intent of the 14th Amendment, Section 2,” Spencer announced.
Since 1868, the Constitution has recognized some protections for voting rights with the 15th Amendment, ratified in 1870, the 19th Amendment, ratified in 1920 and 26th Amendment, ratified in 1971, and bars discrimination based on three categories; race, gender and age, Spencer said.
“… there’s a lot of things the Constitution does not protect or explicitly identify as a fundamental right and yet, the Supreme Court has identified some of these rights as fundamental to who we are.”
These may be rights to people’s physical autonomy, the right to raise children without government interference, the right to make individual medical decisions or the right to an abortion. These are rights that are not explicitly in the Constitution and yet, the Supreme Court has read them to be fundamental, Spencer declared.
“And for a good chunk of the United States history, the Supreme Court used very powerful rhetoric to define voting as a fundamental right under the Constitution.”
The professor showed virtual audiences an excerpt of the U.S. Supreme Court case Yick Wo v. Hopkins and he admitted it was not directly about voting rights but touched on the political power of Chinese citizens in San Francisco.
‘There are many illustrations that might be given of this truth, which would make manifest that it was self-evident in the light of our system of jurisprudence. The case of the political franchise of voting is one. Though not regarded strictly as a natural right, but as a privilege merely conceded by society according to its will under certain conditions, nevertheless it is regarded as a fundamental political right, because preservative of all rights.’
“This is language that Democrats have been using in recent weeks to push for voting right legislation in Congress. Saying, ‘who cares about an infrastructure bill or who cares about a tax bill. If we don’t protect voting rights, none of those things really matter.’ All of those rights flow from our fundamental right to vote, to be heard and to be represented,” Spencer passionately proclaimed.
The professor proceeded to touch upon recent developments in the law and court rulings that have contributed to growing political inequality and the breakdown of America’s democracy.
“We’ve seen just in the last two years the Supreme Court strike down laws and very vociferously argue that inconveniences when it comes to gun ownership or inconveniences when it comes to the free exercise of religion. For example, wearing a mask inside a church is completely unacceptable. They infringe on a fundamental right. And I wonder, what makes voting so different? What makes voting rights less worthy of those kinds of protections?” Spencer asked.
To split rights in this way, and when voting rights are believed to be preservative of all other rights, Spencer felt voting rights deserve to be even stronger.
“Today, we don’t have a Supreme Court that interprets voting rights very strongly and that’s disappointing to me. And I think it results in people losing power in a democracy because the right to vote has been infringed in some way and there’s no protection in courts.”
Scholar Team Research
Last year, COVID-19 caused a huge disruption to the American election system and was declared a pandemic in the middle of a national primary process. Some states delayed their primaries while others held their elections or adopted mail-in voting procedures on the fly, Spencer said.
Working on a project with public health scholars, law professors and a statistician, Spencer said the group assembled an index of data that identifies the risk factors that contribute to COVID-19 mortality and morbidity.
He said death was examined by either the overall percent of the population or as a percent of people who test positive. There are a multitude of factors predicting co-morbidities that go into COVID-19 mortality and the team looked at all of them.
Spencer showed virtual audiences an on-screen map showing there were three primary contributors to COVID-19 mortality, geographically dispersed in certain areas of the country. In New England and northern Midwest states, being 65 years or older was the leading factor of COVID death. In many of the southern states, racial minority status, being non-white was the strongest predictor of COVID mortality. In some counties, it was the type of work performed and employment opportunities in the economy where essential workers died because of the pandemic.
The top 10 riskiest counties in the U.S. with high COVID-death probabilities on Spencer’s map were located in the southwestern corner of Texas along the Rio Grande River.
“Now the reason I bring this up [is] because Texas made a policy decision when it came to administering their elections. They said if you’re over the age of 65, you can cast a mail-in ballot. If you belong to another vulnerable community, for example, if you are a racial minority, you’re not allowed to use mail-in ballots,” Spencer explained.
Despite public pleas and lawsuits by social organizations and community activists, policy choices made by legislators had real voting impacts, Spencer said. The evidence of race as the predominant factor was also evaluated and when superimposed over the map with the partisanship of voters who resided in these counties, data showed that Texas politicians made a partisan calculation.
“…They wanted people who were over the age of 65 to vote easily and not be deterred because of COVID-19, because they predicted that they were more likely to be Republican. But they weren’t so excited about extending voting rights to racial minority groups in southwestern Texas because, well, they predicted they would vote for Democrats,” Spencer reported.
“In essence what they were asking people who lived in these counties was, ‘you can risk your life to cast a ballot or you can stay home.’ And what’s miraculous is that in the United States, turnout in the 2021 election was at an almost all-time high. The highest rating in 108 years in fact. The second-highest turnout rate ever. And yet in these counties along the Rio Grande, turnout went down. And so we see actual voter suppression, not so openly practiced, but in a very clever way; if you want to think about [it] like that; focused on partisanship. Not focused on extending the right to vote and with an unfortunate, but I don’t think an accidental, racial component as well. So, it’s not that we can align our public policymakers to extend the franchise and protect the right to vote. Sometimes we may need the courts to step in when policymakers are not extending that franchise,” Spencer said.