[EL] @TheRepLawyer, 2/7/12 12:43 PM

Tue Feb 7 16:03:54 PST 2012

In response to Justin,

I wonder whether a serious preclearance requirement for practices that either are novel or provide substantial discretion to election officials would catch most of the problematic changes.

I did not mean to suggest that objectors would have the burden of proving discriminatory purpose or effect (or retrogression) with regard to changes in practices by covered jurisdictions (even where those changes are not novel and don't provide substantial discretion to election officials). My suggestion was that that if a change reflects a practice that is not novel, and if it does not provide election officials with substantial discretion, then the change would be precleared automatically unless some evidence is brought forward that it could have a discriminatory purpose or effect, or that it could be retrogressive.  The threshold for the amount of evidence that would need to be brought forward could be set quite low. There would be a specified time period for evidence to be brought forward, in the absence of which the change would be precleared.

Others will have had substantial experience on the ground, so that they would have a better sense of whether such an approach would be effective in protecting voting rights, and whether it would be workable.

Mark

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Justin Levitt
Sent: Tuesday, February 07, 2012 2:01 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] @TheRepLawyer, 2/7/12 12:43 PM

Well, I seem to recall not only novel schemes, but old schemes applied in new ways in order to disenfranchise.  I'm not sure that focusing on novelty alone would get at the relevant harm.  And approving laws in the absence of evidence of discriminatory purpose or effect is essentially how section 2 works now; section 5, flipping the burden of proof, was designed to be stronger medicine.

But on Sam's point, I think there's another logical flaw in South Carolina's argument.

The Court in Crawford found that the Crawford plaintiffs did not put forth evidence proving that the law they were challenging created a burden on the right to vote in violation of the standard under the federal Constitution.

That doesn't say much about whether, in the context of a different law with different evidence, the law in question might violate a different (statutory) standard.  Indiana's ID law wasn't shown to violate the Constitution.  That doesn't say much about whether the same law or a different law would have a statutorily retrogressive effect in a different jurisdiction.

Put differently, nothing about the Crawford opinion addressed whether Indiana's law would or would not have been precleared; Supreme Court approval in that case is not approval of a practice generally, but application of a particular test to particular evidence.  Supreme Court approval in Indiana v. DOJ disapproval in South Carolina is an apples-to-oranges comparison.

Which means, actually, that the Georgia case might now work against South Carolina's argument.  Georgia's ID law was (controversially) precleared in 2005.  South Carolina's was not.  That suggests that if South Carolina is complaining about unequal treatment, then the complaint is traced not to whether a state is subject to preclearance or not, but to the specific retrogressive effect on the ground of specific ID provisions in specific contexts.

Justin

On 2/7/2012 1:40 PM, Scarberry, Mark wrote:
Sam's analysis is persuasive.

I wonder, though, whether there is another approach. One of the problems that led to adoption of the VRA (if I remember correctly) was adoption by covered jurisdictions of novel schemes to disenfranchise minority voters. Practices that have been adopted somewhat widely in non-covered jurisdictions, and that have been upheld as nondiscriminatory in those jurisdictions, are not novel, and probably reflect nondiscriminatory purposes when adopted in covered jurisdictions. Automatic pre-approval of such practices, in the absence of evidence of discriminatory purpose or effect, would leave novel practices subject to more substantial pre-clearance scrutiny.

It might also be appropriate to consider whether the practice proposed to be adopted in a covered jurisdiction provides for discretion in its application. Literacy tests, for example, were not just objectionable because of their general disenfranchisement of illiterate persons, but also because the discretion given to officials in applying literacy tests could be used (and was used) to discriminate against black voters (as was predicted by members of the Reconstruction Congress in their rejection of literacy requirements for voters in local DC elections). If the ability of officials to exercise discretion in using non-novel practices were taken into account, then even practices like occasional moving of polling places could be subject to the current preclearance standards.

My apologies if these points are too obvious or have already been made, either on this list or in the literature.

Mark

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Samuel Bagenstos
Sent: Tuesday, February 07, 2012 1:18 PM
To: Rick Hasen
Cc: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] @TheRepLawyer, 2/7/12 12:43 PM

Just a quick reaction to the complaint.  Aren't paragraphs 35 and 36, which seem like the fulcrum, a bit too cute?  They read:

35. This Court should adopt a reasonably permissible construction of Section 5 of the VRA that preclears South Carolina's voter photo identification requirements and thereby avoids the grave constitutional concerns recognized by the Supreme Court in Nw. Austin Util. Dist. No. 1 v. Holder, 557 U.S. 193 (2009). The Supreme Court has expressly upheld voter identification requirements in non-covered jurisdictions. See Crawford, 553 U.S. at 203 (opinion of Stevens, J.) (holding that Indiana's voter identification law was a "neutral, nondiscriminatory regulation of voting procedure"); id. at 204-05 (Scalia, J., concurring in the judgment) (holding that the Indiana law was a "generally applicable, nondiscriminatory voting regulation"). Yet South Carolina is barred from implementing an almost-identical law, solely because it is covered by Section 5-based on nearly 50-year-old evidence of discrimination that was remedied long ago.
36. If Section 5 of the VRA is interpreted to prohibit South Carolina's Act R54, it will create a situation in which similarly situated, but non-covered States may enact voting-fraud prevention legislation while covered States are barred from doing so. This would create the anomalous situation in which covered jurisdictions would be precluded from enacting legislation that the Supreme Court has found to be perfectly constitutional in a non-covered State. Such a reading of Section 5 of the VRA would raise serious constitutional concerns whether Section 5 of the VRA violates South Carolina's right to equal sovereignty and should be avoided.

As an analytic matter, paragraph 36 does no more than restate Northwest Austin -- which expressly declined to decide any constitutional question -- no?  The whole point of legislation that applies to only some states is that it will sometimes make conduct unlawful in those states that would be lawful in others.  Northwest Austin said that's what raises serious constitutional concerns.  But the remedy can't be to "interpret[]" or "constru[e]" Section 5 so that it never creates the situation in which conduct is unlawful in covered states when it is lawful in others.  To do so is to *effectively* decide that Section 5 is unconstitutional without going through the necessary analysis -- or having the guts -- to actually come out and say the statute is unconstitutional.

Samuel R. Bagenstos
Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109
sambagen at umich.edu<mailto:sambagen at umich.edu>
http://web.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=411
http://disabilitylaw.blogspot.com/

On Feb 7, 2012, at 3:48 PM, Rick Hasen wrote:

[http://a0.twimg.com/profile_images/482972132/rnla_logo_normal.jpg]RNLA (@TheRepLawyer<https://twitter.com/TheRepLawyer>)
2/7/12 12:43 PM<https://twitter.com/thereplawyer/status/166985488266301440>
Text of South Carolina #voterID<http://search.twitter.com/search?q=#voterID> complaint rnla.org/Blogs/blogs/pu...<http://t.co/eFNbaraD>

Rick Hasen

Sent from my iPhone. Please excuse typos.
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Justin Levitt

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