Will The Supreme Court Allow States To Penalize Americans Who Don’t Vote?

About 100 million eligible voters chose not to vote — or were unable to — in the November 2016 presidential election. That’s more individuals than the number of people who cast their ballot for Hillary Clinton, the winner of the popular vote, or for Donald Trump, the winner of the White House.

As Donald Trump reminds us daily (usually through Twitter), we are all punished when such a substantial portion of the population does not participate in voting, the corner-stone of our democracy.

A good portion of these non-voters have never been registered, while others managed to register but have become inactive voters. For those in the latter category living in Ohio (and states with similar laws), the state removes them from the roll entirely if they are inactive for two years, then fail to respond to a letter, and then don’t vote within the next four years.

This purging process is the focus of a voting rights case called Husted v. A. Philip Randolph Institute, et al, which the U.S. Supreme Court has agreed to hear. They will address whether federal law prohibits Ohio from penalizing its citizens for not voting over a six-year-period by removing them from the voter rolls.

The Court of Appeals for the 6th Circuit sided with the voting rights advocates who sued Ohio over this process. Will the Supreme Court come to a different conclusion? I hope not.

I do not see how the federal laws at issue in this case — the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act of 2002 (HAVA) — permit states to remove infrequent voters from the voting roll without a better indication that they are ineligible, such as change of address information from the postal service. Section 20507(b)(2) of the NVRA states:

Any State program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll… shall not result in the removal of any person from the official list of voters in an election for Federal office by reason of the person’s failure to vote.

If there’s evidence the person has moved, then the state may send that person a letter, and finally remove them from the rolls if they don’t respond to the letter and don’t vote within the next four years. Section 20507(c)-(d). HAVA did not alter this process, saying, “nothing in [HAVA] may be construed to authorize or require conduct prohibited under [the NVRA], or to supersede, restrict, or limit the application of [the NVRA.].” 52 U.S.C. 21145(a).

So, based on my reading of these laws, the state needs more than the mere fact that someone didn’t take an affirmative step to maintain their right to vote either by responding to a letter (how many letters have you forgotten to reply to?) or voting within a certain period of time (four years after the letter, six years total).

Six years of non-voting may seem like a long time, but not to me, not when I look at my six-year-old daughter and think about how fast she’s growing up. It also doesn’t seem like a long time when I think about how life’s disturbances can be a challenge to voting for many people, especially when they either don’t know much or don’t care for the candidates running in any particular race.

Importantly, the right to vote encompasses the right not to vote. So, then, why would we penalize Americans who didn’t do it by making it harder for them to ever do it? Taking a person off the roll, forcing them to re-register, is a barrier to voting.

Ohio claims that it must have a way of removing infrequent voters from the rolls to maintain the “integrity of the electoral process,” which is often code for rooting out theoretical voter fraud in a way that benefits a particular party. As I wrote in my comments on this blog about Ari Berman’s book, Give Us the Ballot:

Berman notes that when the Bush Administration made voter fraud the focus of a Justice Department initiative, the probe ‘resulted in only eighty-six convictions out of three hundred million votes cast’ between 2002 and 2007.

Meanwhile, to reduce the virtually non-existent problem of voter fraud, the state of Ohio is willing to take away the voting rights of thousands of its citizens. In the 2016 Presidential election alone — a single election — 7,515 people voted (because of a court order in this case) who would not have been permitted to vote at all under Ohio’s purging process.

My state, Pennsylvania, may employ a similar process targeting infrequent voters. In my precinct, where I am the Judge of Elections, it’s my job to tell hopeful voters that their names do not appear on our rolls. On November 8, 2016, based on my phone records, I spent more than three hours of my time trying to track down where people were registered. Sometimes, it’s another precinct, another ward, or another county; other times, they are registered nowhere at all, despite their clear memory of having voted before. They can file a provisional ballot, which may or may not be counted, but they cannot go into the booth. They walk away with a voter registration application (to get the chance to vote in the future) and the feeling that the state took away their right to vote.

Ohio wants as many people as possible to feel that way. The process they are fighting for in the Husted case is a voter suppression scheme.

In Ohio’s brief to the Supreme Court, on pages 5-6, state Attorney General Michael Dewine and his colleagues said:

It is a tragic fact of history that, before 1965, some States enacted registration rules to “deny registration” to African Americans rather than ensure fair elections. Congress passed the Voting Rights Act to remedy this “extraordinary’ problem.”

Those quotes around “deny registration” and “extraordinary” in Ohio’s brief may as well be sneer quotes considering how disingenuous the state’s position is. It is not merely a tragic fact of history that some states enact rules to deny registration to individuals they believe will not vote for the party in control of those rules. Ohio is fighting for the ability to do that right now.

Lillian’s Right to Vote, a children’s book authored by Jonah Winter and illustrated by Shane W. Evans, poignantly displays the history of the voting rights struggle for racial minorities and women in the United States. It ends with a sobering note that discusses the Supreme Court’s evisceration of the Voting Rights Act and leaves readers with a call to action: “The right to vote still needs protection. Will a new generation rise and continue this fight?”

The answer must be yes.

I am thankful for organizations like the ACLU and Demos, which together filed the lawsuit against Ohio. I hope the Supreme Court does not undo their hard work.


*To read the briefs submitted to the Supreme Court in this case, go to SCOTUSblog.

Separate Is Never Equal

Separate Is Never Equal, a children’s book authored and illustrated by Duncan Tonatiuh, begins:

Sylvia had on her black shoes. They were shiny-new. Her hair was perfectly parted in two long trenzas. It was her first day at the Westminster school. The halls were crowded with students. She was looking for her locker when a young white boy pointed at her and yelled, “Go back to the Mexican school! You don’t belong here!”

Sylvia does not want to return to the Westminster school until her mother reminds her of their family’s struggle to send her there.

Separate Is Never Equal is a retelling of that struggle, based on the real-life lawsuit the Mendez and other families filed against their segregated school districts in California in the 1940s. That case, Mendez v. Westminster School District (1946), affirmed by the 9th Circuit (1947), required four districts in California to admit children of Mexican descent to white schools. Reaching this conclusion, Judge McCormick wrote in the District Court opinion:

A paramount requisite in the American system of public education is social equality.  It must be open to all children by unified school association regardless of lineage… the commingling of the entire student body instills and develops a common cultural attitude among the school children which is imperative for the perpetuation of American institutions and ideals.

64 F. Supp. 544, 549.

This case ultimately led to state legislation, signed by then-governor Earl Warren, that racially desegregated districts across California. Mendez was an important predecessor to Brown v. Board of Education (1954), the U.S. Supreme Court opinion authored by Chief Justice Earl Warren that made it clear that race-based segregation laws and policies violate the United States Constitution.

These court cases were vital to opening up educational opportunities for minority students in the United States, but the book’s opening scene showing Sylvia in tears illustrates a limitation of litigation. The Mendez court changed the official policy of the school district, but not the biased culture that created that policy. Sylvia, however, perseveres in this hostile environment, ultimately forging friendships with children of different backgrounds, relationships I hope contributed to a cultural shift that embraces equality. It’s the happy ending she and all children deserve.

Sadly, though, for far too many of our children today, school remains a racially isolated experience, and majority-minority districts often lack the resources that majority-white districts typically have. As the author’s note explains at the end of the book, citing a 2012 study by the Civil Rights Project at the University of California, “a great deal of inequality–and a kind of unofficial segregation–still exists today.”

More than six decades after Brown and seven after Mendez, the need for equal educational opportunities and intercultural understanding remains. I wish these goals were achievable by court decree, but it clearly takes more than that.

My family lives in a racially diverse area, and my children attend a majority-minority public school in the same district I attended as a child (which was diverse back then but probably not majority-minority). Today, the school district is 53% black, 35% white, under 10% Asian, under 5% Latino, and 1% “other races” (and I have no idea how the district categorizes racially mixed children).

We returned to this community because of its diversity, but, frustratingly, it’s turned out to be far from integrated. Many white families here tout the diversity of our community but send their children to predominantly white private schools.  Meanwhile, the well-funded public schools appear racially segregated in activities and academics, there’s a persistent achievement gap with black students at the bottom, and a handful of incidents since the 2016 election suggest that some faculty and staff need cultural and anti-bias training. The district, led by a diverse group of administrators, recognizes these problems, but we are far from solving them.

I wasn’t expecting my community to be a utopia, but I was hoping for something better than this. Unfortunately, what we have here may be as good as it gets in a country where people lack the personal and political will to do better. At least my district is trying.

What Children’s Books Do You Give?

What gift do you give to the outgoing president of a university? Recently, the seven chairs of Duke’s Academic Council decided to give retiring President Richard Brodhead children’s books, knowing he’s looking forward to spending more time with his young grandchild. Unsurprisingly, the selected books are very old, except for one (see DukeToday to find out which faculty member gave which one and why):

  • Make Way for Ducklings by Robert McCloskey (1941)
  • Alice’s Adventures in Wonderland by Lewis Carroll (1865)
  • Brown Bear, Brown Bear, What Do you See? by Bill Martin Jr. and Eric Carle  (1967)
  • Frederick by Leo Lionni (1967)
  • Freight Train by Donald Crews (1978)
  • The Complete Book of Flower Fairies by Cicely Mary Barker(1920)
  • Jessica’s X-Ray by Pat Zonta (2002)

As is often the case with classics, none of the books noticeably features characters from diverse backgrounds, though at least one is authored/illustrated by a person of color.

In general, I like these books–I’ve read all of them except The Complete Book of Flower Fairies—but none of them are among the books I’ve given to the young children in my life over the years (or their parents and grandparents).

My go-to list of children’s books for gifts includes (among other books):

  • Tea Leaves by Frederick Lipp (2003), a beautifully illustrated story about a girl named Shanti, who lives on the island of Sri Lanka, but has never seen the sea.
  • The Family Book by Todd Parr (2003), which misguided proponents of book banning have challenged in the past for its depiction of families with two moms and two dads;
  • Art & Max by David Wiesner (2010), a beautifully illustrated book that contains enough words to add structure to the story without stifling young imaginations;


What books do you give to the children in your life?


*I learned about Brodhead’s gifts from Alex @randomlyreading. Thanks, Alex!

The Misadventures of the Family Fletcher #MiddleGrade #KidLit

Recently, my family met the Fletchers, the fictional stars of Dana Alison Levy’s middle grade novel, The Misadventures of the Family Fletcher, which I read aloud to my daughters as we waited for the school bus. The Fletcher family consists of two dads, Jason and Tom, and four boys of diverse racial, ethnic, and religious backgrounds named Sam, Jax, Eli, and Frog (short for Bull Frog, AKA Jeremiah). The Fletchers are different from my family in some ways, but we can relate to many of their daily triumphs and tribulations, such as dealing with awkward questions and rude stares.

Here’s an example from Chapter Five:

In the seats, dozens of grown-ups stared blankly at the Fletchers….

Papa stepped forward, smiling. “I’m Jason Fletcher—please call me Jason. And this is my husband, Tom Anderson.”

Dad reached out his hand, also smiling. They had been through this many times, Eli knew… [He] stared at his spotless desk, his face burning. He wasn’t embarrassed about his family—it wasn’t that. It was just… there were so many of them. And so many boys. He knew the questions were coming.


“Are those guys all your brothers? How old are they?” Griffin said. […] “You guys don’t look anything alike.”


“We’re all adopted,” Eli said, edging toward Dad, who was reading the compositions taped to the wall. Eli hoped that the questions would stop now. But before he walked away, he heard Mika say, in a loud whisper, “Why do they have two dads? Don’t they have a mom?”

It was apparently loud enough for Frog to hear too, and before Eli could answer, Frog spoke up. “Of course we had moms! Don’t you even know how babies are made? It takes a man and a woman, and the egg meets the—”

Our family’s situation is different, but we know what it feels like to be on the receiving end of insensitive interrogations because some people don’t understand how our mixed-race family “belongs” together, a topic I explored with my twins in our middle grade novel, Anusha of Prospect Corner.

Like 6-year-old Frog Fletcher, who responds to Mika’s question with a reproductive biology lesson, our Sri Lankan-American Anusha Smyth addresses the ignorance she encounters about where her red hair “comes from” with a science-based answer, a similarity my twins noted as we read Chapter Five together.

We spent time discussing the chapter, in part because it provided a piece of evidence that contributed to my kids’ understanding of the time period of the book. They had been confused about the time period because one of the Fletcher boys had considered taking a paper-route, an old-fashioned job my kids know of only from stories about their Granddad’s childhood.

When my girls learned that Tom is Jason’s husband, my daughter said: “Oh, so they’re married. Then it takes place now because same-sex marriage wasn’t legal until recently.”**

“Sort of,” I replied, noting that the story seems to take place in Massachusetts, where marriage equality became the law well over a decade ago as a result of Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (2003). That decision came down from the Massachusetts Supreme Court at the end of my first semester of law school. I was in Massachusetts at the time, and I wondered how long it would take for marriage equality to reach the rest of the country.

Twelve years later, in Obergefell v. Hodges, the U.S. Supreme Court finally declared that United States Constitution protects the right of same-sex couples to marry. 135 S. Ct. 2584 (2015).

There are some people in our country — such as those responsible for the 2016 Republican Party platform — who want to turn the clock back to a time when real families like the fictional Fletchers had little or no legal protection for their love of each other, but judging from my children’s positive reaction to The Misadventures of the Family Fletcher, I think those people are fighting a losing battle. My kids accept the Fletchers for what they really are: a fun family worth reading about. They and other members of their generation are our future, not those people who want to reinstate the past.


*We read this book after it was recommended by @raincityjane @thelogonauts on the #diversekidlit twitter chat (for a recap, see here: http://www.thelogonauts.com/2017/04/chat.html)

**A later reference to Minecraft helped us narrow the time period to “pretty much now.”

A Shared Superpower & Another Anne of Green Gables

One of my daughters shares more than her red hair and Sri Lankan-American background with the main character of Anusha of Prospect Corner, the middle grade novel we wrote together (the e-book is now $1.99 on Amazon; See also: A Review of Anusha of Prospect Corner (Our #Ownvoices Novel Inspired By Anne of Green Gables).

They share a “superpower” too. Anusha is uncommonly good at finding four-leaf clovers, and yesterday, my daughter showed she is also quite good at finding them. We stuck her clovers in a copy of Anusha:

Anusha of Prospect Corner is a multicultural take on L. M. Montgomery’s Anne of Green Gables. I love adaptations of classics, both in written form and on the screen, and I am looking forward to watching the new retelling that will debut on Netflix in the United States on May 12th. Anne is already airing in Canada, which gave us L. M. Montgomery and her timeless creations in the first place.

This new adaptation focuses on some of the darker aspects of Anne Shirley’s life. In a recent interview on Smithsonian.com, Moira Walley-Beckett, the show’s producer and writer, said:

I guess I don’t really agree that it’s a darker take. I think that it’s a deep, honest take. All of Anne’s backstory is in the book. She’s had a terrible early life. She talks about it in exposition, and I just took us there dramatically.

Yes, Anne’s early life was bleak. When I read the book with my daughters, before we wrote Anusha of Prospect Corner together, they teared up at these words:

Marilla asked no more questions. Anne gave herself up to a silent rapture over the shore road and Marilla guided the sorrel abstractedly while she pondered deeply. Pity was stirring in her heart for the child. What a starved, unloved life she had had—a life of drudgery and poverty and neglect; for Marilla was shrewd enough to read between the lines of Anne’s history and divine the truth.

We will watch Anne together next month.  I wonder how my children will react to seeing the story behind these lines transferred to the screen.


PS. If you’d like to see a picture of a six-leaf clover I found last summer, see A Review of Anusha of Prospect Corner (scroll to the bottom).

On Challenging LGBTQ #DiverseKidLit

While many of us demand that the publishing industry give us books that reflect our diverse experiences, there are others out there in favor of the opposite: the production and promotion of only white, heteronormative, cisgender, ableist stories. Last year, those people demanded that libraries and schools in their communities ban several books that feature LGBTQ themes.

The top five (of the ten) most challenged books on the American Library Association’s 2016 list are:

  • This One Summer by Mariko Tamaki & illustrated by Jillian Tamaki
  • Drama by Raina Telgemeier
  • George by Alex Gino
  • I Am Jazz by Jessica Herthel & Jazz Jennings, illustrated by Shelagh McNicholas
  • Two Boys Kissing by David Levithan

All of these books include LGBTQ characters and themes.

To people with the audacity to challenge these books, it’s not enough to prohibit their own children from reading them. They feel a need to prevent everyone’s children from reading them too. And for what? To protect impressionable youth? Books like Alex Gino’s George, which features a transgender child, don’t “brainwash” children into being anything other than who those children already are. As I’ve said several times before, initially in Please Stop Parenting My Children (2013):

All I can say to [book challengers] is this: exposure to many different ideas doesn’t brainwash people. It’s the exposure to only one idea or belief system that does. If the mere exposure to new ideas is enough for those old beliefs to crumble, then its proponents should stop to consider why their beliefs aren’t more persuasive. In my opinion, an idea that can’t withstand a fair debate isn’t an idea worth passing onto the next generation.

But I’m not going to waste my time arguing with those people. They’re fighting a losing battle. The more they kick and scream about a book, the more children will want to read it, and my sense is that librarians and the courts will probably protect their access to it (though not all of the time, especially when it comes to school curricula).

Our most recent case on book banning from the U.S. Supreme Court, our highest court, is Board of Education v. Pico, 457 U.S. 853 (1982), an old case and a mere plurality opinion (which means fewer than five Justices agreed on it).  For now, though, it is our best indication of where the law stands on the issue. That means that public schools and libraries, to which the First Amendment applies, may not remove books from the shelves “simply because they dislike the ideas contained in those books.” Pico, 457 U.S. 853 at 872.

The people who challenged George and the other books on that list might not like the ideas contained in those stories, but those “ideas” are fictional depictions of a reality they cannot change or ignore. Diversity exists whether they like it or not, and they can’t hide that fact from their children (or anyone else’s) forever.


*Thanks to @thelogonauts (of The Logonauts blog), whose tweet inspired this post.


Anusha of Prospect Corner #OwnVoices #MiddleGrade

Just a quick note- The ebook version of Anusha of Prospect Corner is on sale today! It’s a multicultural, middle grade novel inspired by our background and L. M. Montgomery’s Anne of Green Gables. I wrote it with my twins, who had very clear ideas about the ways Anusha’s story needed to be different from Anne’s. (See How I Betrayed My Children (While Writing With Them)). I learned so much about my kids while working on this project with them. It was a wonderful experience.

To meet my co-authors, check out this video:

To read a review of Anusha of Prospect Corner, see The Huntress of Diverse Books (Jan. 22, 2017).

To learn more about Anusha of Prospect Corner, find it on:

Have a great weekend!