Available here: Smith Declaration
Available here: Smith Declaration
…in Ghana (West Africa).
For all of you Floridaphiles (or Floridaphobes), don’t worry…I’m working on a paper examining the popular support for Amendments 5 & 6 in Florida.
And for those of you interested in nonpartisan election commissions and the allocation of parliamentary seats in Africa, by all means, plow ahead.
In February, 2011, the Ghana Statistical Service (GSS)
released provisional results of the 2010 Population and
Housing Census. All eyes are now on Ghana’s National
Electoral Commission (EC), as it is constitutionally required
to use the new census data to determine the allocation,
demarcation, and apportionment of parliamentary
constituencies in the country. In this essay, I attempt to
address—from an admittedly Americanist standpoint1—
questions pertaining to legislative representation in Ghana.
I argue that the EC is uniquely equipped to carry out its
constitutional duty to prescribe the boundaries of the
country’s parliamentary constituencies, as mandated under
Article 47 of the 1992 Constitution. Yet, as the EC embarks
upon its re-demarcation and reapportionment duties, there
is good reason for Ghanaians of all political stripes to be
concerned. The EC’s decision in 2003 to create 30
additional parliamentary constituencies based on the
boundaries of administrative districts is fraught with unsettling
representational and political ramifications, yet it has not
received the kind of critical scrutiny it deserves.
By no means is this essay an attack on the Electoral
Commission. Since the commencement of Ghana’s 4th
Republic, on a range of contentious issues—from the
maintenance of the voters’ register and distribution of voter
registration cards, to staffing polling stations and tabulating
and announcing the final vote, to current considerations of
overseas voting and biometric ID cards—the Chairman of
the EC, Dr. Kwadwo Afari-Gyan, and the EC staff have
continually stepped up to the challenge. Of course, the EC
is not without its critics. Nevertheless, the EC is the envy of
democracy advocates throughout the sub-region and
beyond, as outsiders recognize the many institutional benefits
of having a permanent, independent, nonpartisan elections
commission overseeing the electoral process.
As a scholar whose nonpartisan interests are informed
by democratic theory and questions of representation,
my concerns with the allocation and demarcation of
parliamentary seats in Ghana today remain as ardent as
when I first broached the topic a decade ago.2 I restrict
my comments here to the EC’s immediate task of
demarcating and apportioning parliamentary seats in
Ghana. I begin with comparative insights on the
redistricting process in the American states, discussing
the partisan task of drawing single-member legislative
districts. I then discuss the EC’s decision in 2003 to
apportion 30 new parliamentary constituencies, using
existing administrative districts—rather than the
“population quota”—as its guiding principle. In doing so,
I analyze how the EC’s rationale may be exacerbating
the problem of malapportioned parliamentary seats. I
use the GSS’s preliminary Census 2010 data, as well as
administrative district data across the 10 regions, to
conduct an analysis of the current distribution of
parliamentary seats in the country. My research reveals
the unequal allocation of parliamentary seats across the
country with respect to their populations. I conclude by
discussing some of the representational and political issues
stemming from the EC’s rationale to use administrative
districts to allocate parliamentary seats.
Full essay available here
November 3, 2011
Dear Attorney General Holder:
I have just written a letter to U.S. Sen. Richard Durbin of Illinois who chairs the Senate Judiciary subcommittee on the Constitution, Civil Rights and Human Rights. I have asked Sen. Durbin’s subcommittee to conduct a congressional investigation to see if Florida’s new election law is linked to the efforts to pass similar voting restrictions in 14 states so far this year.
The changes mostly involve new ID requirements, shorter early voting periods and new restrictions on third parties who sign up new voters. In Florida, the League of Women Voters considered these restrictions so egregious it abandoned its registration drives after 72 years, and teachers there are running afoul of the law for the way they sign up students to vote.
According to the first comprehensive study of the laws’ impact, just completed by The Brennan Center for Justice at New York University School of Law, these voting changes could make it significantly harder for more than five million eligible voters in numerous states to cast their ballots in 2012. Both The Washington Post and New York Times have reported such measures could keep young people and minorities away from the polls.
If the Brennan Center is correct in its assessment that five million voters could be disenfranchised, that would be more than the all the registered voters in any of 42 states in this country.
In short, indications are mounting of an effort to suppress the national vote. In Florida, the Justice Department continues reviewing how the voting law changes would affect certain voters, particularly minorities, pursuant to the Voting Rights Act. I believe more should be done.
The Justice Department should investigate whether new state voting laws resulted from collusion or an orchestrated effort to limit voter turnout. The Department needs to determine whether or not there was broad-based motivation to suppress the vote—and, if so, whether any laws were violated.
I look forward to your prompt response on this most serious of issues.
Here’s the link to Sen. Nelson’s letter to Attorney General Holder.
I’ve been writing a lot over the past five months about House Bill 1355, dubbed by many as Florida’s ignominious voter suppression law. HB1355 is being challenge in federal court, and the US Justice Department has yet to grant preclearance of portions of the law which cover five Florida counties covered by Section 5 of the Voting Rights Act. Defending the law, the Florida Secretary of State is suing in Federal Court to not only uphold all sections of the law, but to strike down Section 5 of the Voting Rights Act.
Most of the attention that I and others have given to HB1355 has focused on three areas that the GOP-controlled legislature cracked down on in order to make it more difficult for citizens of Florida to register to vote and cast a ballot, namely:
1) Reducing the number of days for early voting from 14 days to eight days, and altogether eliminating early voting on the Sunday before the Tuesday election.
2) Requiring third-party voter registration organizations to submit voter registration applications within 48 hours of receipt instead of ten days as provided by existing law, and imposing a fine of $50 for each failure to comply with the deadline, and imposing fines up to $1,000 for failing to comply with other provisions.
3) Disallowing voters who move from one Florida county to another to make an address change at the polls on the day of an election and vote a regular ballot, except for active military voters and their family members.
(Less attention has been given to the portion of the law that reduces the shelf-life of citizen initiative petition signatures proposing constitutional amendments from four years to two years.)
Virtually no attention has been given to HB1355′s impact on absentee voting in Florida. The reason is fairly simple: the law has actually made it easier for citizens to cast an absentee ballot, and actually, increases the likelihood of voter fraud.
Absentee ballot fraud is not limited to Miami mayoral races. Just yesterday, several people in Madison County, including a candidate for school board, were arrested and charged with obtaining absentee ballots for other people without the voters’ knowledge or consent. The candidate and her accomplices then provided an alternate address for the ballots to be mailed by the Supervisor of Elections, and allegedly then retrieved the ballots from the third party locations, brought the ballots to the voter, sometimes with the ballots already filled out, and then had the voter sign the absentee ballot signature envelope.
Tragically, HB1355 eliminates the provision that existed in 2010 when the fraud occurred, making future absentee ballot fraud more difficult to prosecute. Prior to the election code being changed by the Republican legislature in 2011, Supervisors of Elections were required to send absentee ballot to a voter’s registered address, unless the voter was absent from the county, hospitalized, or temporarily unable to occupy their residence.
But these provisions to reduce the possibility of absentee voter fraud were stricken by HB1355. Instead of being required (with the forgoing exceptions) to send an absentee ballot “By nonforwardable, return-if-undeliverable mail to the elector’s current mailing address on file with the supervisor,” supervisors now may be asked by anyone (even over the phone) to mail an absentee ballot “to any other address the elector specifies in the request.”
HB1355 is an embarrassment, plain and simple. The Republican-controlled legislature’s intention was not to reduce voter fraud, of which there is virtually none when it comes to voter registration and early voting. The reason lawmakers turned a blind eye to absentee ballots in the state–where there is clear evidence of voter fraud–is because registered Republicans are much more likely to use this form of convenience voting than their Democratic counterparts. In 2008, Republicans had a 10.8% lead over Democrats voting absentee ballots by Election Day.
Partisan politics in Florida have reached a new low.
According to a recent Field Poll, which comes on the heels of similar findings in a PPIC poll, Californians still like the institution of direct democracy, although support has tapered off quite a bit over the years.
Over half those polled this fall think that statewide ballot propositions are a “good thing,” with only 13% viewing the process in a negative light. Back in 1978, on the heels of Proposition 13, 83% of those surveyed in a Field Poll said it was a “good thing.”
What do Californians like? By a margin of 56% to 32%, those polled support having propositions on general election ballots, which will be the case following the June 2012 primary election, as Governor Brown just last week signed Senate Bill 202.
The poll also reveals that a majority of Californians trust fellow citizens via the ballot propositions more than the state legislature to “do what is right on important government issues.” As I wrote back in September:
Reforming the initiative process in California is an easy task compared to the one really plaguing California. The real issue facing the state is whether the state legislature will reform itself so that Californians will regain confidence in the legislative process. This will take considerable effort, but until it is achieved, Californians will continue to invest their trust in the initiative process, as flawed as it may be. And if the legislature doesn’t clean up its own house soon, the citizens of California may take to the initiative to do it themselves.
If the California legislature continues to fail to govern responsibly, citizens (and corporate interests) will respond by turning to the initiative and popular referendum, as the mechanisms provide immediate response, if not ideal representation, of the interests of those living in the state.
In its amended complaint to receive declaratory judgment from a federal court that all sections of HB 1355 are entitled to preclearance under Section 5 of the 1965 Voting Rights Act, the Florida Secretary of State plays fast and loose with the facts.
With respect to the shrinking of the days permissible to vote early in Florida, the complaint states (on page 19) that:
The changes to the early voting statute contained in Section 39 were adopted to expand access to early voting and provide each supervisor of elections additional flexibility regarding the scheduling of early voting. The changes to the early voting statute contained in Section 39 were not adopted with the purpose of denying or abridging the right to vote on account of race, color, or membership in a language minority.
Both the motive behind the statute, HB 1355, as well as the empirical evidence regarding race and early voting in Florida, are quite clear, and do not jibe with the claims made in the Secretary of State’s complaint.
First, as I’ve noted previously, it’s well known that African Americans are more likely to vote early in Florida than whites. In the 2008 general election, 2.1 million Floridians voted early. African Americans cast 22 percent of the early votes, even though they only comprised 13 percent of the total electorate.
The Republican-led Florida legislature was well aware of these statistics. The early turnout of African Americans in 2008 undoubtedly inspired the effort by Republican lawmakers to compress early voting, in anticipation of the 2012 general election. Indeed, the Republican effort to suppress blacks from voting early was on full display during the floor debate on House Bill 1355 (known formally as the Committee Substitute for Committee Substitute for House Bill 1355 (CS/CS/HB 1355)).
Defending the bill, Republican Senator Mike Bennett stated on the floor of the Florida Senate (as reported by PolitiFact):
Do you read the stories about the people in Africa? The people in the desert, who literally walk two and three hundred miles so they can have the opportunity to do what we do, and we want to make it more convenient? How much more convenient do you want to make it? Do we want to go to their house? Take the polling booth with us? This is a hard-fought privilege. This is something people die for. You want to make it convenient? The guy who died to give you that right, it was not convenient. Why would we make it any easier? I want ‘em to fight for it. I want ‘em to know what it’s like. I want them to go down there, and have to walk across town to go over and vote.
Although the total number of early voting hours remains fixed at 96 hours, they’re not the same hours. Previously, voters had two weeks to cast an early vote, from a Monday to the Sunday before Election Day. Under HB 1355, the period is eight days long, running from Saturday through Saturday, but eliminating the final Sunday before election day.
The new restriction on early voting–specifically, cutting the early voting period from 14 to 8 days and eliminating voting on the Sunday prior to the general election–unquestionably targets African Americans. Not only were African Americans more likely to cast an early ballot than whites in 2008, they were also more likely to do it on the Sunday prior to election day.
Targeting African Americans was the intent of Republican lawmakers all along, and HB 1355 clearly violates the Section 5 of the Voting Rights Act, and the same racially motivated efforts by lawmakers to suppress the vote by minorities that it intended to correct nearly half a century ago.
As I’ve said publicly time and again, I’m unequivocally ambivalent about direct democracy. I’ve written a book critical of the populist rhetoric (faux populism) of ballot measures, and another praising the “educative effects” of direct democracy. My dozens of articles on direct democracy are empirically driven, as I’ve tried to keep a normative-neutral stance in my academic writings. Direct democracy is by no means a perfect system, but neither is representative democracy.
As with every other state, the record of direct democracy in California is certainly mixed. Direct democracy just happens to be more prevalent in California than most other states. It trails only Oregon in the number of initiatives that have been qualified for the ballot since the state adopted the process in 1911.
Over the next century, hundreds of initiatives will again surely become qualified for the ballot. Just this last week, Governor Jerry Brown took a courageous step to improve the process by signing Senate Bill 202, which now limits California ballot initiatives to November elections. Besides the expected charges that the bill will help Democrats by having initiatives on the ballots in higher turnout elections, critics of SB 202 claim that citizens may be overwhelmed by the number of propositions that are expected to appear on general election ballots. Yet since 1912, California has averaged only 6.3 initiatives every two-year election cycle. Certainly, potential voters can handle this level of initiatives. Indeed, the state managed to survive the 1914 ballot, which had more than 40 statewide measures (initiatives, popular referendums, and legislative referendums)! (Citizens wound up rejecting 11 of the 17 initiatives.)
Despite its flaws,there’s much to admire about the initiative process in California. The state has one of the best disclosure laws on the campaign financing of ballot measures, and as I’ve written elsewhere, it has solid laws regulating the circulation of petitions.
To be sure, reforms could be made to the state’s s initiative process. First, California does not make signatures submitted on initiative and popular referendum petitions, which could reduce fraud in the signature gathering process, as the Supreme Court of the United States recognized in its 2010 decision, Doe v. Reed. Second, is the only state that permits the process where the legislature may neither amend nor repeal an initiative statute. Both of these areas should be addressed by the state legislature in the coming years.
The process ofdirect democracy, as practiced in California over the past century, certainly has exhibited considerable vulnerabilities. There’s room for improving the system. But over the years, it also has served as a “gun behind the door,” as Woodrow Wilson–a critic of direct democracy–reluctantly referred to the initiative process. It has kept the state legislature in check, given citizens a voice, and helped to engage the electorate and affect candidate campaigns. No political system is perfect, including California’s hybrid democracy, but it has lasted a century and it will no doubt continue to endure for years to come.
Derrick Bell, the first African American dean of a non-historically black school of law, and long-time professor at Harvard and NYU law schools, passed away yesterday at age 80.
In addition to pioneering “critical race theory,” Bell penned a seminal essay in 1978, on the dangers of direct democracy towards minorities. Bell, in his Washington Law Review article, “The Referendum: Democracy’s Barrier to Racial Equality,” argued that ballot measures could perpetuate racial discrimination, increasingly so as racial barriers are simultaneously being lowered in representative democracy. As such, the courts, Bell contended, should use heightened scrutiny assessing whether the civil rights of minorities are diminished via plebiscite. Concerned with the populist tropes of some ballot measures, Bell warned, “Although the racial motivation is hidden, its effects are not; and the damage to minorities and to the integrity of a representative government can be as severe as that of the overtly racist laws existing in the country before 1954.”
Crunching data to determine not only the racial breakdown of Florida’s early voters in 2008 and 2010, but also which voters cast early ballots on Sundays. Look for an upcoming Department of Justice legal challenge to HB1355 signed into law by Governor Rick Scott.
Congressman Mario Diaz-Balart’s heavily Latino majority-minority CD strongly supported Amendment 6 in 2010, with 62.49% approval.