[EL] section 5 and access--response to dan and rick's post
Justin Levitt
levittj at lls.edu
Mon Aug 19 14:55:15 PDT 2013
Rick P. and Dan looked to the numbers of objections and MIRs (both
overall and as a percentage of submissions) to determine the relative
power of the substantive work that section 5 was doing recently.
In his post below, Mike points out the variable of partisanship and the
way that a shift from mixed partisanship to unitary partisan control
might alter the story.
But there's another aspect to this story as well: what preclearance
"actually" did may not be captured well by the total volume of
objections, even beyond the effect of a partisan shift.
Rick and Dan are absolutely right that the most objections (and requests
for more information) show the vast majority of the activity -- _by
volume_ -- in redistricting (and secondarily, by changes in the method
of election, for example, from districts to at-large or vice versa).
But as I've written before, <http://ssrn.com/abstract=2265729> about 86%
of those objections are located at the county and local level (and if
you peel back the onion a bit more, some of the "statewide" changes are
actually state laws that only affect one local area).
So to make the assertion that section 5 was "really" about
redistricting, you'd need to have some sort of way to weight the
relative importance of these different objections. Consider Texas. I
count 15 denials of preclearance during the period Rick and Dan
identified: 5 changes in individual school districts' or towns' method
of election, 3 changes to county redistricting, 2 changes to county
Spanish-language procedures, 1 change to a community college district's
absentee ballot provisions, 2 statewide redistrictings, 1 statewide
change to candidate qualifications for water district supervisor, and 1
change to ID procedures. By volume, it's clear that redistricting is
the bulk of the work. But that volume gives the same weight to
statewide voter ID rules as it does to a change in a local school
district election structure.
Or consider South Carolina, which may make the point even more cleanly.
There were 11 denials of preclearance from 2000-2013: 5 changes in local
school districts' method of election, 1 local annexation, 3 local
redistrictings, 1 county redistricting, and 1 statewide ID rule. In
South Carolina, was section 5 "really" about (local) redistricting or
(statewide) access to the ballot?
My answer is "both." I think changes in statewide voting procedures are
important, and I think local redistricting is important, and I'm not
sure that comparing the volume of one to the sheer volume of another
tells you much about where section 5 has the most utility.
For what it's worth, there is much in Rick P. and Dan's post that is
helpful. I disagree with some of their points (given the history of
covered jurisdictions (and the availability of bailout), section 5 was
never purely about disparate impact
<http://redistricting.lls.edu/files/_%20Levitt%20responses%20to%20Franken%20QFRs.pdf>
alone: there's actually good reason to be more suspicious of policies
with a disparate impact in Texas than in Wisconsin). And I heartily
agree with others (it is unclear how section 5 "vote denial" claims
would be considered by the Supreme Court, there is utility in protecting
against access restrictions through means beyond a preclearance
model). I just want to note here that looking purely to the number of
objections or MIRs doesn't necessarily tell you what section 5 was
"really" about unless you think that all election-related changes, no
matter what scale, were equally impactful.
Justin
--
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321
On 8/19/2013 12:11 PM, Pitts, Michael Jude wrote:
>
> I have great respect for Dan Tokaji and Rick Pildes. They are smart
> folks and excellent scholars. And they may well be right that Section
> 5 did not do a wonderful job of protecting access to the ballot for
> minority voters. But I am not convinced of that argument by the
> statistics presented in their blog post.
>
> Dan and Rick make their case that Section 5 did not do much to protect
> access to the ballot primarily by focusing on statistics involving the
> Department of Justice's (DOJ) objections to voting changes from 2000
> to 2013. Using those statistics, they rightly note that (1) the vast
> majority of DOJs objections during that period did not relate to
> access issues but instead related to vote dilution issues, such as
> redistricting plans; and (2) that as a percentage of submissions,
> objections to access-type changes are much smaller than those related
> to dilution-type changes.
>
> Leaving aside the hotly contested issue as to whether Section 5 served
> to deter covered jurisdictions from adopting changes that harmed
> minority voters in the first instance, Dan and Rick leave unmentioned
> what may well be the most important reason Section 5 is currently
> needed (at least at the statewide level) to protect access for
> minority voters---the shift in the partisan political dynamic in the
> covered jurisdictions that has occurred between 2000 and now.
>
> The covered jurisdictions have changed enormously since 2000 in terms
> of the partisan dynamic, going from either solidly Democratic or mixed
> to solidly Republican. Take a look at the map at this link from PEW:
> http://www.pewstates.org/research/data-visualizations/republican-rule-deeper-divides-85899444189.
> What you'll see is that eight of the States that were fully covered by
> Section 5 (Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi,
> South Carolina, Texas) and one of the State's that was covered in
> substantial part by Section 5 (North Carolina) are now strongly
> Republican---meaning Republicans control all the levers of state
> government. While I couldn't easily locate a map of what the makeup
> of the States was in 2000, off the top of my head, I recall that
> Democrats still retained some control in the legislatures of Alabama,
> Georgia, Louisiana, Mississippi, North Carolina, and Texas; and, in
> 2000, Alaska and South Carolina had Democratic governors.
>
> As many of the access laws that both Dan and Rick and myself find
> troublesome originate in States dominated by Republicans, the new,
> relatively recent, political dynamic of the South would likely enhance
> the /current/ need for Section 5. Indeed, the very recent history of
> Section 5 litigation over access changes by State governments (Texas
> and South Carolina photo ID; Florida early voting)---where DOJ was
> successful---would seem to be much more indicative of the importance
> of Section 5 to access issues than rates of DOJ objections from 2000
> to present.
>
> To be sure, Dan and Rick may have made the case that there is no need
> for Section 5 coverage of access changes on the /local /level. In the
> present day and age, there probably isn't the need for Section 5
> review of every precinct and polling place change in every county,
> city and school district within the covered jurisdictions. That's not
> to say that there wouldn't be any problems in this realm, it's just
> that the costs might outweigh the benefits of such review.
>
> Dan and Rick may also well be right that a Supreme Court hostile to
> the Voting Rights Act might have reduced Section 5's effectiveness in
> blocking problematic access laws passed by the covered
> jurisdictions---although somewhat interestingly, in many of the recent
> Section 5 cases, Republican judicial appointees in the lower courts
> often embraced the Department of Justice's arguments. Even so, at
> least the "better" status quo would have been retained in the years
> leading up to these holdings of the Supreme Court.
>
> In sum, while the statistics used by Dan and Rick to make their
> argument are something worthy of consideration, I don't think these
> statistics fairly reflect the whole story about Section 5's current
> import to access issues in light of the tremendous partisan
> realignment that has occurred in the covered jurisdictions over the
> course of the same exact time period that Dan and Rick focus upon.
>
> Best,
>
> Mike
>
> Michael J. Pitts
>
> Professor of Law & Dean's Fellow
>
> Chair, Faculty Recruitment Committee
>
> Indiana University Robert H. McKinney School of Law
>
> 530 West New York Street
>
> Indianapolis, IN 46202
>
> 317-278-9155
>
> mjpitts at iupui.edu
>
> Webpage: http://mckinneylaw.iu.edu/~mjpitts
>
> *From:*law-election-bounces at department-lists.uci.edu
> [mailto:law-election-bounces at department-lists.uci.edu] *On Behalf Of
> *Rick Hasen
> *Sent:* Monday, August 19, 2013 12:23 PM
> *To:* law-election at UCI.edu
> *Subject:* [EL] ELB News and Commentary 8/19/13
>
>
> What Did VRA Preclearance Actually Do?: The Gap Between Perception
> and Reality <http://electionlawblog.org/?p=54521>
>
> Posted on August 19, 2013 4:39 am
> <http://electionlawblog.org/?p=54521> by Dan Tokaji
> <http://electionlawblog.org/?author=5>
>
>
> *By Rick Pildes & Dan Tokaji*
>
> A widespread perception exists that, in the years before the Court's
> decision in /Shelby County v. Holder/, the Section 5 preclearance
> regime was a powerful tool in protecting access to the ballot box for
> minority voters. Indeed, Section 5 is widely thought to have been
> overwhelmingly about protecting access in the covered areas: that is
> part of it symbolic meaning. On this view, Section 5 was a bulwark
> against laws like the one just signed by North Carolina's governor
> <http://www.politico.com/story/2013/08/pat-mccrory-voting-law-north-carolina-95462.html>
> -- which makes voting more difficult for eligible voters by cutting
> the early voting period, eliminating same-day registration, and other
> measures.
>
> But the reality is that Section 5 was rarely used in this way, at
> least in its last three decades. Section 5 did not, primarily,
> function to protect access to the ballot box. Instead, the
> overwhelming uses of Section 5 were to ensure more majority-majority
> election districts or to stop at-large election systems and other
> practices believed to weaken minority voting strength. Some of these
> uses, especially the compelled creation of majority-minority election
> districts, are more controversial (even among conventional "liberals")
> than are robust protections for access to the ballot box. Yet in
> practice, Section 5 was used primarily for redistricting and other
> matters of vote dilution rather than protecting the right of eligible
> citizens to cast a vote
> <http://www.scotusblog.com/2013/06/shelby-commentary-what-does-the-courts-decision-mean/>.
>
> A better-informed understanding of what the Section 4/5 preclearance
> regime did and did not do before /Shelby County/ is needed to shed
> appropriate light on possible directions for policy changes in the
> wake of the Court's decision. In addition, the assumption that
> Section 5 would have been an effective tool to block emerging barriers
> to political participation, if not for /Shelby County/, is more
> complicated than often recognized. To fully protect access to the
> ballot box for eligible voters, policies structured differently than
> Section 5 would have been necessary in any event.
>
> At the end of this post is a table with the full data on Section 5
> submissions and objections from 2000 to 2012. These data are drawn
> from the Department of Justice's website
> <http://www.justice.gov/crt/about/vot/sec_5/obj_activ.php> and a very
> useful search tool on the Lawyers' Committee for Civil Rights' website
> <http://www.lawyerscommittee.org/projects/section_5>. 2000 is an
> especially appropriate starting point, because it coincides with the
> period during which issues of election administration became a
> prominent public concern, starting with Florida's contested
> presidential election and /Bush v. Gore/. If barriers to
> participation were a common subject of DOJ attention and concern, we
> would expect to see a lot of that concern manifested in this period.
> But in fact, we don't.
>
> Briefly summarized, the data show this: Redistricting changes
> generated vastly more objections than any other category -- more than
> half of all objections DOJ made since 2000 (39 of 76). That number
> was almost twice as high as the next-highest category, Method of
> Election (20), which includes various forms of vote dilution (such
> at-large elections and the number of seats on a multi-member body),
> but not vote denial.
>
> Similarly, redistricting and Method of Election changes were also the
> top two uses of Section 5 when it comes to the /percentage/ of
> submissions yielding an objection. DOJ objected to 0.94% of
> Redistricting changes. These changes were more than ten times as
> likely to generate an objection as Voter Registration/Qualifications
> changes, which yielded just five objections from 2000 to 2012.
> Redistricting changes were more than 350 times as likely to generate
> an objection as Polling Place/Absentee & Early Voting Locations
> changes (just one objection). The "Miscellaneous" category, which
> includes "Absentee voting," "Ballot format," "Election administration"
> and "Voter assistance procedures," did not yield any objections.
>
> In sum, rules governing access to the ballot box and election
> administration were rarely the subjects of Section 5 objections from
> 2000 on (the overall pattern is the same during the Clinton years).
> But we were also concerned that formal objections do not tell the
> whole story about the effectiveness of preclearance. While DOJ
> objected to a very small percentage of the changes it received, it
> more frequently requested more information from the jurisdiction
> seeking preclearance. Sometimes, these requests for more information
> (MIRs) resulted in alterations to or withdrawal of the proposed voting
> changes. So what does adding these MIRs into the picture show about
> how Section 5 was actually used? Does it change anything from what
> the record of formal objections shows?
>
> The answer is no. Luis Ricardo Fraga and Maria Lizet Ocampo have
> published the most extensive study of more information requests (MIRs
> <http://www.law.berkeley.edu/files/ch_3_fraga_ocampo_3-9-07.pdf>).
> They show that the pattern of MIRs is essentially the same as that
> with formal objections: Redistricting and Method of Election were the
> two largest sources of MIRs. Between 1982 and 2005, DOJ requested more
> information for about 3.5% of all voting changes. For voting changes
> categorized as Redistricting, however, the DOJ issued an MIR 14.2% of
> the time (to 1,234 out of a total of 8,694 submissions). For "Method
> of Election" changes, DOJ issued an MIR 18.5% of the time (on 2,728 of
> 14,780 submissions). On the other hand, for the categories associated
> with vote denial (including Voter Registration and Polling Place
> changes), DOJ was much less likely to request more information.
>
> These data demonstrate the disjunction between perception and reality
> when it comes to what the preclearance regime was actually doing
> before /Shelby County/. While new barriers to participation have been
> a prominent subject of public, legislative, and scholarly concern --
> and properly so -- Section 5 in practice had long been about
> redistricting, at-large elections, and other forms of vote dilution,
> not about protecting against vote denial.
>
> Just very recently, Section 5 had begun to play a role -- for the
> first time in decades -- in addressing access-to-the-ballot box
> issues. This is partly because of a wave of new state laws that
> impose additional conditions on voting or that cut back recent
> extensions in ease of access. In the last year before /Shelby
> County/, three important and highly publicized cases used Section 5 in
> this way. Federal courts used Section 5 to stop cutbacks to early
> voting in the five (of 67) covered counties in Florida; to induce
> changes that softened South Carolina's voter ID law; and to block
> Texas' voter ID law that permitted only exceptionally limited forms of
> identification to count. These decisions fuel the perception that
> Section 5 was a major barrier to new laws that make access to the
> ballot box for minority voters more difficult.
>
> But keep in mind, because there has been so little use of Section 5 to
> address these "vote denial" claims, we also have minimal information
> -- and virtually none from the Supreme Court -- on how effective
> Section 5 would have been in stopping such restrictions in the long
> run. The Supreme Court did not pass on the merits of any of these
> three lower-court decisions.
>
> Section 5 was never an all-purpose protection for access to the ballot
> box: only voting changes that had a distinctly disproportionate impact
> on minority voters could be blocked. That left open two huge
> questions, for this Court, that would have arisen even without /Shelby
> County/. How much of a differential impact on minority voters would
> the Court have required to block the change under Section 5? And even
> if there were large differences in impact along racial lines, would
> this Court have found it constitutional for federal law to block state
> changes in voting merely because of disparate racial impacts, absent a
> strong basis in evidence for concluding that the state changes
> actually had a discriminatory purpose? Put more concretely, would
> this Court have upheld Section 5's use to block cut-backs in early
> voting in parts of Florida, when similar cutbacks were fine in Ohio
> (and, indeed, in other parts of Florida)? Those who view Section 5 as
> a (now defunct) savior from all newly emerging barriers to access
> implicitly make optimistic assumptions not necessarily warranted about
> what the Court would have done in such cases.
>
> For all these reasons, Section 5?s bark was bigger than its perceived
> bite when it came to protecting access to the vote. It might have
> deterred covered jurisdictions from adopting new restrictions on
> access, though it is impossible to know what size any such effect
> might have been. What's clear is that Section 5 was rarely used to
> ask for more information about such changes or to stop them once enacted.
>
> In the long run, other tools are likely to be more effective at
> protecting access to the ballot box. Some requiring legislation, some
> are possible through executive action, and some involve the courts.
> The possibilities include, to name just a few: federal efforts to
> improve voting access through measures such as more modern
> registration systems (using either the Elections Clause or the
> Spending Clause); federal provision of valid identification to
> eligible voters who might otherwise lack such identification; greater
> disclosure of information about the performance of voting systems in
> various states; federal legislation that would establish appropriate,
> reasonable identification requirements for federal elections and
> pre-empt more draconian state laws; use of state constitutional
> right-to-vote provisions in litigation. Voting rights advocates
> should focus on these types of reforms -- about which we, and surely
> others, will have more to say in the future.
>
>
> Section 5 Submissions and Objections, 2000-2012.
>
> *Type*
>
>
>
> *Submissions*
>
>
>
> *Objections*
>
>
>
> *Percent*
>
> Redistricting/Reapportionment
>
>
>
> 4,132
>
>
>
> 39
>
>
>
> 0.94%
>
> Annexation
>
>
>
> 46,151
>
>
>
> 3
>
>
>
> 0.01%
>
> Polling Place/Absentee & Early Voting Locations
>
>
>
> 37,995
>
>
>
> 1
>
>
>
> 0.00%
>
> Precinct
>
>
>
> 19,182
>
>
>
> 1
>
>
>
> 0.01%
>
> Reregistration/Purge
>
>
>
> 41
>
>
>
> 0
>
>
>
> 0.00%
>
> Incorporation/Dissolution
>
>
>
> 2,103
>
>
>
> 0
>
>
>
> 0.00%
>
> Bilingual Procedures
>
>
>
> 1,934
>
>
>
> 3
>
>
>
> 0.16%
>
> Method of Election
>
>
>
> 7,653
>
>
>
> 20
>
>
>
> 0.26%
>
> Form of Government (Elective/Appointed)
>
>
>
> 519
>
>
>
> 0
>
>
>
> 0.00%
>
> Consolidation/Division of Political Units
>
>
>
> 967
>
>
>
> 0
>
>
>
> 0.00%
>
> Special Election
>
>
>
> 17,330
>
>
>
> 2
>
>
>
> 0.01%
>
> Voting Methods
>
>
>
> 7,395
>
>
>
> 0
>
>
>
> 0.00%
>
> Candidate Qualifications
>
>
>
> 2,205
>
>
>
> 2
>
>
>
> 0.09%
>
> Voter Registration Procedures/Voter Qualifications
>
>
>
> 5,400
>
>
>
> 5
>
>
>
> 0.09%
>
> Miscellaneous
>
>
>
> 55,040
>
>
>
> 0
>
>
>
> 0.00%
>
> Total
>
>
>
> 208,047
>
>
>
> 76
>
>
>
> 0.04%
>
>
>
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