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A Philanthropic Response to Voting Rights Restrictions: Shelby County vs. Holder - Present

A Philanthropic Response to Voting Rights Restrictions: Shelby County vs. Holder - Present

Introduction.

            On June 25, 2013, the Supreme Court of the United States, in a 5-4 split, freed states from the section of the Voting Rights Act that required advance federal approval for a change in their states’ election laws. In her dissent, Justice Ruth Bader Ginsberg compared the court’s decision to “[throw] out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”[1] Since this time, many states have passed laws that make voting harder, largely impacting minority voter turn out. “These [restrictive laws] include new measures that require voter ID or proof of citizenship, eliminate early voting days or locations, restrict or shut polling locations, and a myriad other tactics designed to unfairly limit and discourage voter participation by African-American, Latino, Asian, young, and lower-income Americans.”[2]

            Through litigation, the creation of donor collaborative funds, technology advancement, policy advocacy, and voter outreach, philanthropy has worked to defend the right of Americans to participate in their government’s elections. In this report, the case for philanthropy’s further involvement in the fight for voting rights will be made, based on its previous successes and the nature of its role in American democracy. The case will also be made that the expansion of voting rights is, in fact, a nonpartisan issue that philanthropies can freely support. The assumption made in this report, and by many foundations supporting voting rights activism, that higher voter participation is strengthening to American democracy.

The Role of Philanthropy.

Philanthropy has emerged as the most effective actor in the fight to protect and restore voting rights in America. Multifaceted in its nature, it’s improbable that the issue of voting rights can be righted by the same style of blunt federal ruling that endangered them in the first place; rather, adaptable and nuanced approaches funded through philanthropy are far more impactful. Voting rights has become a partisan issue in government, with restrictive voting laws overwhelmingly coming from the Republican Party, which has full control of the governors’ mansions and state legislatures in twenty-three states compared to the Democrats’ control of just four states[3]. By giving the states control of election law, voting restrictions have reflected this GOP-dominated composition.

Philanthropies working to expand voting rights, however, are motivated by nonpartisan mission statements that aim to “strengthen democracy” such as The Ford Foundation, The MacArthur Foundation, and Omidyar Network’s Democracy Fund. These funders have given more than $400 million in grants to “Campaigns, Elections, and Voting” initiatives, the largest portion of $198 million going specifically towards Voter Education, Registration, and Turnout.[4] “[Foundations] are often driven by a belief that a high level of voter turnout, regardless of the voter’s political affiliation, is an important indicator of a healthy democracy, and that more engagement by voters will ultimately lead to better policy outcomes.”[5] Many philanthropists agree with Michael Waldman, President of the Brennan Center for Justice, when he says, “Voting is a nonpartisan issue.”[6] It is, in many ways, similar to the philanthropic efforts to support the civil rights movement – while opposed in government by one political party, the philanthropic principle behind their efforts was not in support of one party or the other.

However, when pitted clearly against the platform of a national political party, donors and foundations may hesitate to openly support voting rights efforts. Money that might have gone to 501(c)3 organizations working to expand voting rights purely in the philanthropic space may go to lobbying efforts or campaign donations, instead. In this report, the various ways philanthropy can impact the fight for expanding voting rights are illustrated by current efforts by foundations and not-for-profits. “Since 2011, almost 200 foundations have made about 1,300 grants to almost 500 nonprofits to further voter education, registration, and turnout.”[7] Not only will the great effect made by philanthropy be shown, but it will also show areas for further engagement from the philanthropic sector. The philanthropic timeline, after all, exceeds governmental term limits and election cycles. As Waldman of the Brennan Center makes clear in a panel discussion for philanthropists interested in strengthening democracy, “this is a central fight and it will never be won permanently, but it is a fight we must continue.”[8]

Current Philanthropic Efforts.

            There are myriad approaches taken by philanthropists to strengthen American democracy. These efforts, in many cases, directly correlate or overlap with efforts to expand voting rights. Some philanthropies fund litigation or litigate themselves in the face of voter suppression. Others focus on improving the administration of elections in America through technology. Still others work more structurally, creating policy proposals and conducting research on the effects of Shelby and restrictive voting laws on America’s democracy. Finally, with the recognition that some aspect of disenfranchisement lies not only in law but also in public perception that one’s vote “doesn’t count” or “can’t change anything,” other philanthropic efforts engage with voters and encourage democratic participation in communities that historically have low voter turnout.

            Litigation is undoubtedly key in the expansion of voting rights, as it is the tool of the people when they dissent with the government. However, litigation efforts find themselves underfunded due to “foundations’ [reluctance] to fund anything that’s going to court.”[9] Taking the government to court, while a defensive practice in response to a restrictive law, can still be seen as aggressive from the perspective of philanthropists, especially those trying to maintain a purely nonpartisan appearance. However, the legal defense funds and litigation groups are, by most accounts, on the front lines, allowing other types of not-for-profits to operate more structurally. Geri Mannion, director of Carnegie Corporation's Strengthening U.S. Democracy Program, which does not actively litigate, makes it clear that “if it weren’t for the all the great legal defense funds and other litigation groups, we would be in much worse shape.”[10] Not only that, but they work with the policy institutes and research organizations, using data they use to defend their legal cases.

            The Brennan Center for Justice represents the multifaceted nature of voting rights by engaging in litigation, policy advocacy, and research. In June of 2015, The Brennan Center represented the League of Women Voters of the United States, along with its Arizona and Kansas affiliates, in a lawsuit opposing harsh state laws that require documentary proof of citizenship to register to vote. The League joined the United States Election Assistance Commission as defendants in Kris W. Kobach et al. v. United States Election Assistance Commission. The Supreme Court of the United States let stand the 10th Circuit's previous ruling that the states “may not force applicants using the federal voter registration form to show documents proving citizenship when registering to vote in federal races,” ruling in favor of The Brennan Center and their co-defendants.[11] This is one example of many advancements in voting rights that have been made in the courts. Litigation, in many ways, is seen as the “boots on the ground” philanthropic response to restrictive voting laws. It is rapid response and yields a direct result from the judiciary system. However, the court, like philanthropy, is not intended to be political but ends up in the crossfire between political parties often. When one side of the case is the government, the court can become even more political. Geri Mannion directly rebukes this idea, declaring “total disagreement with that idea [that voting rights is partisan]. Lower income people, young people, people of color—they may tend to be more progressive, but not always, and not always over the long term.”[12] However, as mentioned before, this highly visible status dissuades some foundations and philanthropists from funding organizations with strategy dependent on litigation.

            Litigation cannot be, and is not, the only tactic used by philanthropy to expand voting rights, for some of the obvious complications we have seen in the past. The beginning of the current era of voting restrictions began with a Supreme Court decision, Shelby County v. Holder, which was decided against voting rights activists. Additionally, judicial rulings quickly reveal their loopholes and exceptions, which are then exploited by the side that lost in court. After all, voting rights activism was activated by the Shelby decision, not entirely stopped when one court case went against them. The pivotal role that litigation and the judicial branch play in voting rights expansion is undeniable. It is one of the reasons the issue is so multifaceted. Philanthropy, in its uniquely ambiguous role in American society, is well poised to fill the gaps left in litigation strategy. The Brennan Center’s own president, Michael Waldman, said: “This is a fight that must be won in the courts and in the court of public opinion.”[13]

One way to fight in the court of public opinion is through another “boots on the ground” strategy – direct voter outreach and education. Jay Beckner, President of the Mertz Gilmore Foundation, advises, “If your foundation is worried about partisanship, you can certainly fund public education on [voting rights] issues—programs for young people, or programs for new citizens.”[14] The $400 million of foundation grants that have gone to Campaigns, Elections, and Voting since 2011 is dwarfed by the $1.2 billion given to Civic Participation. While the legal restrictions that explicitly prevent people from voting exist, other aspects of the law are simply convoluted or commonly misinterpreted in a way that dissuades voters from turning out. As voting rights have become increasingly volatile, laws can change from one election cycle to the next. This creates a need for nonpartisan voter education, like the kind offered by the Voter Participation Center, funded in large part by a $3.7 million grant made by the Vanguard Charitable Endowment Program.[15] This is a striking example of a funder that would prefer to remain safely nonpartisan. The Vanguard Charitable Endowment Program is a donor-advised fund, responsible for grant-making in the name of its customers. While it may not affect the striking, sudden change we see in litigation, voter outreach programs further compels the case that voting rights is an effort to strengthen democracy, not a left-leaning foundation initiative, bank rolled by the few.

In order to have a participatory electorate, the electorate must understand the administration of elections. The effects of shallow voter education can be varied but almost inevitably result in lower voting rates. This is not necessarily an effect of any restrictive voting law in particular; however, low voter participation becomes a cultural norm in communities that are systematically disenfranchised by those very laws. Voter education can combat the perceptions that lead to low voter turnout, such as the belief that voting is difficult or partial understanding of one’s rights as a voter. In a study done by the Educational Testing Service after low minority voter turn out in the 2012 election, Fault Lines in Our Democracy: Civic Knowledge, Voting Behavior and Civic Engagement in the United States,[16] it was revealed “many nonvoters in recent national elections indicated they were not interested in voting or did not believe their vote mattered.” These widespread misconceptions can have as much of a measurable effect on voter turnout in the same communities that are typically affected by restrictive voting laws.

            While litigation and voter outreach can be considered the most visible efforts of the voting rights philanthropic movement, there is important structural work being funded by philanthropy, as well. Specifically, technological research and development and policy advocacy are areas where foundations are aggressively advancing the way voting rights are thought of. In this sense, “foundations serve as a democratic society’s ‘risk capital,’ a potent discovery mechanism for experimentation and innovation in social policy over a long time horizon with uncertain results,”[17] as advocated by Professor Rob Reich of Stanford. While these areas go hand in hand, we’ll first address policy advocacy, as it is foundational in all non-governmental efforts to affect governmental behavior.

            As the litigation efforts of the Brennan Center for Justice attempt to strike down restrictive laws, the advocacy branch of the Brennan Center put forth a cornerstone “Voter Registration Modernization” policy proposal. “The Brennan Center’s signature proposal to modernize voting would harness proven technology to ensure that every eligible voter is permanently registered. The move would add 50 million to the rolls, cost less, and curb the potential for fraud.”[18] While it’s unlikely than a not-for-profit’s policy proposal is adopted holistically, it is an important tool for advocacy. By providing solutions, backed by research that the government was unlikely to fund in the first place, these policy proposals can be used by sympathetic governmental actors. After the Brennan Center released its policy proposal for voter registration modernization, five states have authorized automatic voter registration at DMVs, at least thirty-nine states currently or will soon offer online voter registration, and fifteen states offer Election Day voter registration.[19] Georgetown University Law Center’s Voting Rights Institute was among the Brennan Center for Justice and NEO Philanthropy in receiving prestigious MacArthur Foundation grants. One of the leaders of the voting rights litigation, Kristen Clarke, President and Executive Director of the Lawyers' Committee for Civil Rights Under Law, made the value of policy advocacy clear on the same panel Geri Mannion of the Carnegie Corporation encouraged funding litigation: “It is important to support organizations doing the structural work, the policy work.”[20] This support across organizations and voting rights strategies shows not only how multifaceted the issue is but also how many opportunities there are for philanthropic intervention.

            In the newest area of voting rights philanthropy, technology advancement is seen as a key to both higher civic engagement and modernized voter registration, creating an easier registration process that allows for expanded voter rights. Clearly, since the Brennan Center’s cornerstone voting rights policy proposal is on the modernization of voting systems, technology plays a large role in the future of voting administration and, therefore, voting rights. On the forefront of the area is The Democracy Fund, a member of the Omidyar Network. Its mission encapsulates technology’s potential to revolutionize the American voting process: “Data-driven policies and new technologies can help reduce barriers to voting, improve integrity and public trust in the electoral system, and reduce the dependency of our leaders on special financial interests.”[21] Technology advances can work in conjunction with policy, as suggested in the Brennan Center’s proposal, or stand on their own to improve voting rights without government reform. The Democracy Fund supports the Pew Charitable Trusts, most recently with a $2 million grant, to fund its “suite of technological solutions to address concerns with both access and integrity in our voter registration system.”[22] Functional and user-friendly voter administration is a public good that should be supplied by the government. Using Professor Rob Reich’s argument for the ways that foundations can enhance American democracy, foundations are uniquely well equipped to “overcome problems in public good production by diminishing government orthodoxy and decentralizing the definition and distribution of public goods.”[23] With Republican control in federal, state, and local government, the supply of this public good is unlikely to be subsidized by the government in the near future. These efforts are independent of any change in the law and yet still expand voting rights.

Further Philanthropic Involvement.

The current models for investment in litigation, voter education, policy advocacy, and technological research and development can be employed by various foundations and not for profits, considering the wide range of focuses and expertise employed in these fields. Foundations and donor collaboratives are providing necessary funding for the not-for-profits engaged in these efforts. The issue of protecting and expanding voting rights is not close to over. “In 2016, seventeen states had new laws on the books making voting more difficult for the first time in a large-scale, high turnout, national election.”[24] Foundations, along with continuing to support and execute programs toward voting rights expansion, should work to provide sustained funding for the organizations involved in expanding voting rights, rather than just supporting these organizations in election years. As Judith Browne Dianis, the President of the Advancement Project, makes clear, “funding for our efforts tends to be cyclical whereas our work is anything but.”[25] The nature of philanthropy extends beyond term limits and election cycles, a strength in this politically charged battle.

Philanthropy in America occupies a space endowed with influence and independence. It serves as a complement and challenge to American democracy. It is within this space that it must become the champion for voting rights, strengthening the very nation that subsidizes philanthropic organizations with its taxpayers’ dollars. All the things philanthropy works toward for the public good are aided with greater voter participation. It is often questioned whether foundations are truly democratic or if they give outsized influence to those with money. While this debate is not the focus of this report, it is my belief that expanding democratic participation is an incredibly worthwhile pursuit for foundations. With a government truly by the people and for the people, there will be greater representation for those who don’t currently have a voice in government, the same people who turn to philanthropy. Strengthening democracy in turn strengthens philanthropy.

  -Alaina Haworth

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[1] Shelby County v. Holder (June 25, 2013).

[2] "Right to Vote," Advancement Project, The Partisan Playbook, accessed December 13, 2016, http://www.advancementproject.org/campaigns/Protect-Your-Vote.

[3] K.K. Rebecca Lai, Karl Russell, and Jasmine C. Lee, "In a Further Blow to Democrats, Republicans Increase Their Hold on State Governments," The New York Times, November 11, 2016, accessed December 13, 2016.

[4] "Foundation Maps | Foundation Center," Foundations Funding U.S. Democracy, Distribution Chart: Campaigns, Elections, and Voting, accessed December 13, 2016, https://maps.foundationcenter.org/#/charts/.

[5] Born, Kelly. "The Role of Philanthropy and Nonprofits in Increasing US Voter Turnout." Stanford Social Innovation Review, January 25, 2016. Accessed December 12, 2016. https://ssir.org/increasing_voter_turnout/entry/the_role_of_philanthropy_and_nonprofits_in_increasing_us_voter_turnout.

[6] Ablow, Gail. "Don't Give Up on Democracy." Carnegie Corporation of New York. November 2, 2016. Accessed December 13, 2016. https://www.carnegie.org/news/articles/dont-give-democracy-encouraging-citizenship/.

[7] Born, Kelly. "The Role of Philanthropy and Nonprofits in Increasing US Voter Turnout." Stanford Social Innovation Review, January 25, 2016.

[8] Kristen Clarke et al., "Will Philanthropy Join in the Fight to Vote?," interview by Geri Mannion, Philanthropy New York (audio blog), June 16, 2016, 0:21:04, accessed December 12, 2016, https://philanthropynewyork.org/event-calendar/will-philanthropy-join-fight-vote.

[9] Kristen Clarke et al., "Will Philanthropy Join in the Fight to Vote?," interview by Geri Mannion, Philanthropy New York (audio blog), June 16, 2016, 1:31:28.

[10] Ablow, Gail. "Don't Give Up on Democracy." Carnegie Corporation of New York. November 2, 2016.

[11] "Kobach Et Al. v. The United States Election Assistance Commission | Brennan Center for Justice." Kobach Et Al. v. The United States Election Assistance Commission | Brennan Center for Justice. June 29, 2015. Accessed December 13, 2016. https://www.brennancenter.org/legal-work/kobach-et-al-v-united-states-election-assistance-commission.

[12] Ablow, Gail. "Don't Give Up on Democracy." Carnegie Corporation of New York. November 2, 2016.

[13] Kristen Clarke et al., "Will Philanthropy Join in the Fight to Vote?," interview by Geri Mannion, Philanthropy New York (audio blog), June 16, 2016, 0:3:53.

[14] Ablow, Gail. "Don't Give Up on Democracy." Carnegie Corporation of New York. November 2, 2016.

[15] "Foundation Maps | Foundation Center," Foundations Funding U.S. Democracy, Distribution Chart: Campaigns, Elections, and Voting, accessed December 13, 2016, https://maps.foundationcenter.org/#/charts/.

[16] Coley, Richard J. "Fault Lines in Our Democracy." Fault Lines in Our Democracy: Home. April 2012. Accessed December 15, 2016. http://www.ets.org/s/research/19386/.

[17] Reich, Rob. "Repugnant to the Whole Idea of Democracy? On the Role of Foundations in Democratic Societies." PS: Political Science & Politics 49, no. 03 (2016): 466-72. doi:10.1017/s1049096516000718.

[18] "Voter Registration Modernization | Brennan Center for Justice," Voter Registration Modernization | Brennan Center for Justice, Voter Registration Modernization, accessed December 13, 2016, https://www.brennancenter.org/voter-registration-modernization.

[19] "Automatic Voter Registration and Modernization in the States | Brennan Center for Justice." Automatic Voter Registration and Modernization in the States | Brennan Center for Justice. July 12, 2016. Accessed December 13, 2016. https://www.brennancenter.org/analysis/voter-registration-modernization-states.

[20] Kristen Clarke et al., "Will Philanthropy Join in the Fight to Vote?," interview by Geri Mannion, Philanthropy New York (audio blog), June 16, 2016, 1:31:12.

[21] Joe Goldman, "Our Priorities," Principled Leadership & Effective Governance: Democracy Fund, Modern Elections & Money in Politics, accessed December 13, 2016, http://www.democracyfund.org/priorities.

[22] Democracy Fund, "The Pew Charitable Trusts: Election Initiatives," The Pew Charitable Trusts: Election Initiatives: Democracy Fund, Innovative Solutions, accessed December 13, 2016, http://www.democracyfund.org/portfolio/entry/pew-charitable-trusts-election-initiatives1.

[23] Reich, Rob. "Repugnant to the Whole Idea of Democracy? On the Role of Foundations in Democratic Societies." 

[24] Kristen Clarke et al., "Will Philanthropy Join in the Fight to Vote?," interview by Geri Mannion, Philanthropy New York (audio blog), June 16, 2016, 0:3:53.

[25] Browne, Judith. "How Foundations Are Supporting Voting Rights - PhilanTopic | PND | Foundation Center." PhilanTopic | PND | Foundation Center. November 24, 2015. Accessed December 15, 2016. http://pndblog.typepad.com/pndblog/2015/11/how-foundations-are-supporting-voting-rights.html.

 

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