With the Supreme Court now considering one of the most serious challenges to the 1965 Voting Rights Act in history -- and states battling over election law, like voter ID in Texas -- voting law is will be one of the high court's most important issues in coming years.
And in the major election law cases Judge Sonia Sotomayor has heard, she's sided with civil rights advocates for expanding the franchise -- setting up the potential for a major battle with the GOP's ranking member of the Senate Judiciary Committee, Sen. Jefferson Sessions of Alabama.
Voting experts point to two areas where Sotomayor's rulings have stood out:
FELON DISENFRANCHISEMENT: Judge Sotomayor's biggest voting rights case has likely been Hayden v Pataki. In this 2006 case in the 2nd Circuit, ex-felon Joseph "Jazz" Hayden brought a challenge under the Voting Rights Act against New York's law banning ex-felons from voting. Civil rights advocates had mobilized around the case, saying felon disenfranchisement laws showed a clear history of racial discrimination.
The majority dismissed the case, but Judge Sotomayour dissented, saying the issue of discrimination was actually quite simple, as SCOTUSBLOG reports:
[Sotomayor] opined that the issue was actually much simpler than the majority and
concurring opinions would suggest: the VRA "applies to all 'voting
qualifications,'" and - in her view - the state law "disqualifies a
group of people from voting." "These two propositions," she concluded,
"should constitute the entirety of our analysis."
BALLOT ACCESS: Over at Ballot Access News, Richard Winger reports that Judge Sotomayor was the first federal judge to rule favorably in a constitutional case involving write-in voting. The case was Gelb v Board of Elections in the City of New York:
Irving Gelb, a candidate for Bronx Borough President in 1995, was
removed from the Democratic primary ballot, and thus became a write-in
candidate. However, he discovered that New York city was not printing
write-in space on absentee ballots, nor on sample ballots, nor was it
obeying a state law that required pencils to be in the voting booth.
Sotomayor refused to dismiss the case, citing Supreme Court precedent: "Burdick v Takushi reaffirmed the principle that states cannot structure
elections in a manner that favors candidates of established parties."
Winger also writes that Judge Sotomayor supported expanded ballot access in Lopez Torres v New York State Board of Elections.
SOTOMAYOR V SESSIONS: Judge Sotomayor's strong support for voting rights sets up a ready-made battle between Obama's nominee and Sen. Jefferson Sessions (R-AL), now the ranking Republican on the Senate Judiciary Committee that takes up her confirmation.
Judge Sotomayor's and Sen. Sessions' views on voting rights couldn't be more different. As Sara Wildman recounted in a 2002 piece in The New Republic, Sen. Sessions got his start not as a politician but as Reagan's 1986 appointee to the U.S. District Court in Alabama.
But Sessions' record on voting rights and race relations was so controversial that the Republican-dominated Alabama Judiciary Committee voted 10-8 against bringing his nomination to the senate floor.
Among the issues that came out during his hearings:
* BOGUS CHARGES OF "VOTER FRAUD": As a U.S. Attorney for Southern Alabama, Sessions had unsuccesfully prosecuted three civil rights workers of "voter fraud." As Wildman writes:
The three had been working in the "Black Belt" counties of Alabama, which, after years of voting white, had begun to swing toward black candidates as voter registration drives brought in more black voters. Sessions's focus on these counties to the exclusion of others caused an uproar among civil rights leaders, especially after hours of interrogating black absentee voters produced only 14 allegedly tampered ballots out of more than 1.7 million cast in the state in the 1984 election.
* OPPOSITION TO VOTING RIGHTS ACT: Sessions admitted to calling
the 1965 Voting Rights Act "a piece of intrusive legislation" -- and
stood behind the quote during the hearings.
* ATTACKS ON CIVIL RIGHTS GROUPS: Several witnesses came up to testify that Sessions had labeled groups like the ACLU, NAACP, Southern Christian Leadership Conference and National Council of Churches as variously "un-American" and "Communist-inspired" organizations that "forced civil rights down the throats of people." One witness said that Sessions called a white civil rights lawyer a "disgrace to his race" for litigating voting rights cases (Sessions said he had been joking).
Sessions' checkered voting rights career didn't end there. After being elected state Attorney General in 1994, Sessions was lambasted for aggressively pursuing "voter fraud" cases in African-American areas -- while failing to investigate a wave of church burnings that swept through black communities.
After being elected to the Senate, Sen. Sessions championed President Bush's judicial appointments. Wildman:
[Sessions defended] such dubious nominees as Charles Pickering, who in 1959 wrote a paper defending Mississippi's anti-miscegenation law, and Judge Dennis Shedd, who dismissed nearly every fair-employment civil rights case brought before him as a federal district court judge. Sessions called Pickering "a leader for racial harmony" and a "courageous," "quality individual" who was being used as a "political pawn." Regarding Shedd, he pooh-poohed the criticism, announcing that the judge "should have been commended for the rulings he has made," not chastised.
Get ready for a fascinating -- and hard-fought -- Supreme Court nomination fight.