Joshua A. Douglas

  • September 26, 2017
    Guest Post

    by Joshua A. Douglas, law professor, University of Kentucky College of Law

    The Constitution can save us. Yes, the same document that gave us the Electoral College, unfettered presidential pardons, and deadlock in Congress can be our democracy’s savior – but only if we as a society actively embrace it through political participation. That means registering to vote and exercising the franchise.

    September 17 was Constitution Day, a nationwide celebration of our founding document. September 26 is National Voter Registration Day. These two days should cause all Americans to acknowledge the fundamental role that the Constitution and political participation plays to the foundation of our democracy. We all need to double down in our efforts to protect those sacred rights. And it need not require huge efforts or a ton of work: simply reminding your neighbor to register to vote can have a big impact.

  • July 10, 2017
    Guest Post

    by Joshua A. Douglas, Robert G. Lawson & William H. Fortune Associate Professor of Law, University of Kentucky College of Law

    While doom-and-gloom seems to dominate voting rights news these days, there is also positive work happening on the ground to enhance the right to vote. That is the goal of a lawsuit in Massachusetts, showing the importance of playing offense instead of defense in an effort to expand democratic participation.

    Voters in Massachusetts, along with the ACLU, are challenging Massachusetts’s 20-day registration deadline. Under the law, a voter may not cast a ballot on Election Day unless he or she has registered at least 20 days in advance of the election. The plaintiffs in Massachusetts argue that the government has no need for this registration deadline and that requiring people to register ahead of Election Day deprives those who do not comply of their constitutionally-protected right to vote. They literally cannot vote if they do not register ahead of the election and yet given modern technology, the state has no need for the 20-day requirement.

    The plaintiffs have already won, in part. Just before the 2016 election, state judge Douglas Wilkins found that Massachusetts had failed to demonstrate a “real reason, grounded in data, facts, or other evidence,” for the registration deadline. The court noted, “The right to vote is fundamental, as guaranteed by the Massachusetts Constitution.” The registration deadline deprived the three plaintiffs of this fundamental right. The court therefore allowed them to cast their ballots even though they had not registered in time. Yet that decision did not resolve the ultimate question of the constitutionality of a registration deadline before Election Day. The court is now considering that question, hearing testimony from voters, election experts, and state officials.

  • May 23, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    by Joshua A. Douglas, Robert G. Lawson & William H. Fortune Associate Professor of Law, University of Kentucky College of Law

    Much of the discussion about voting rights during the upcoming ACS National Convention will likely revolve around how to fight back against new measures of voter suppression. And for good reason. The Trump administration has already signaled its desire to “fix” the so-called problem of “election integrity,” creating a sham commission to study the issue. We already know what the commission will find with Kansas Secretary of State Kris Kobach leading it: embellished anecdotes of integrity concerns to justify ever-more restrictive voting rules.

    But while we must fight back against measures that make it harder to register and vote, that cannot be the only aspect of our efforts. In fact, it should not even be the biggest part. If we use up our resources putting out each successive fire in the voting rights world, we will fail to move forward with more positive measures to make voting as easy and convenient as possible for everyone who wishes to participate.

     Several states and localities are coming up with innovative ways to expand the electorate and open up the election process. The movement to adopt automatic voter registration, which Oregon showed can help to improve turnout, is going strong. Online voter registration is now a reality in the majority of states; the lagging states should update their registration system.

    Some states, like Virginia and Alabama, are easing their harsh felon disenfranchisement rules. Florida voters will have the opportunity next year to limit their own felon disenfranchisement law, which is currently among the worst in the nation in preventing over a million people from voting.

  • March 21, 2017
    Guest Post

    *This piece originally appeared on The Huffington Post.

    by Joshua A. Douglas, Robert G. Lawson & William H. Fortune Associate Professor of Law, University of Kentucky College of Law

    As Judge Neil Gorsuch faces his confirmation hearings to be the next Supreme Court Justice, the Trump White House and Republican senators continue to say that he is a strong conservative in the mold of Justice Antonin Scalia, who he would replace. If Judge Gorsuch’s views on the constitutional right to vote are the same as Justice Scalia’s, however, there is great cause for concern.

    The right to vote is the most important and fundamental right we enjoy. It provides the foundation for our democracy.

    Yet Justice Scalia’s rulings were extremely restrictive when it came to voting rights. For instance, in 2008, when the Court refused to strike down Indiana’s strict voter ID law, Justice Scalia wrote a separate opinion to complain that the Court’s main opinion did not go far enough. While the Court’s ruling upholding the law left the door open to future lawsuits with better evidence, Justice Scalia would have closed off any future challenges to a voter ID requirement. He said that it did not matter if a handful of voters might find it more difficult to participate on Election Day. The harm to the constitutional right to vote for any particular individual was no big deal if the law did not impose a burden on the electorate as a whole.

  • February 3, 2017
    Guest Post

    *This post updates the Aug. 6, 2015 piece, State Constitutions: The Next Frontier in Voting Rights Protection.

    by Joshua A. Douglas, the Robert G. Lawson & William H. Fortune Associate Professor of Law, University of Kentucky College of Law

    On the 50th anniversary of the Voting Rights Act, in August 2015, I wrote that "A renewed, independent focus on state constitutions and their explicit grant of the right to vote would restore the importance of the most foundational right in our democracy." In the Trump era -- with false claims of widespread voter fraud and likely calls for new restrictive voting rules -- that reliance on robust state constitutional protection is more vital than ever.

    Reformers who care about protecting the right to vote face an uphill battle in the current political environment. The Trump White House, the Republican-led Congress, and even many conservative-controlled state legislatures are unlikely to enact meaningful voting rights reform in the near future. The Supreme Court, especially with a new conservative justice, is unlikely to alter its crabbed interpretation of U.S. constitutional protection of the right to vote. State courts are therefore even more important in vindicating the most fundamental right in our democracy by checking partisan abuses and attempts at entrenchment. They must recognize the robust right to vote that all state constitutions confer and construe them as providing stronger protection than the Constitution.