[EL] section 5 and access--response to dan and rick's post

[Joey Fishkin]

Dan and Rick's study is important; I certainly learned from today's post.  One part of what I think it may underscore is the very recent and rapidly changing character of the new vote denial controversies.  I can see why it made sense for Dan and Rick to start in 2000: you want at least a few years of data, and that year's election dramatically raised the profile of the new vote denial controversies.  But, as Mike notes, many of the covered jurisdictions got into the game more recently, due to very recent shifts in Republican control, e.g. North Carolina in 2010.  (Crawford v. Marion County, in contrast, came to us from the old-line Republican state of Indiana.)  The Texas Voter ID litigation suggests that Section 5 had potential to play a major role in these new controversies.  But as Dan and Rick show, that potential was mostly just that -- potential.  In DOJ objections from 2000-2012, it wasn't (yet?) happening much.

In my view, the most important feature of Section 5 was its adaptability.  Like Title VII's disparate impact provision (another measure that can be, and has been, criticized on the ground that claims under it affect few actual cases in comparison to the amount of ink spilled about it -- and most of the cases are of a few specific types of fact patterns), Section 5 always had the potential to shift emphasis significantly in response to shifts in what state legislatures do.  In my view, that's the heart of the appeal of statutory provisions like Section 5 and Title VII's disparate impact provision -- once in place, they create a mechanism that can be adapted by litigants and courts to respond to new types of controversies, without further action by Congress.  The predominance of redistricting-related types of objections during the period Dan and Rick study is probably an example of this; an earlier period might have seen, say, at-large schemes dominating the docket.

When we think about the question of what is the right legal structure for voting rights protections in a post-Shelby County world, the question of adaptability should be at the front of our minds.  Whether we're talking about what can be done with existing legal structures (Section 2, Section 3 bail-in), or new proposals for federal legislation under the Elections Clause (or otherwise), we need to think hard about how to put structures in place that can be responsive to patterns not predicted at the time the structures are put in place.  (Arguably, Section 2 might have this feature -- its adaptability to the new vote denial controversies will be tested very soon.)

Joey



On Aug 19, 2013, at 2:11 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
> 
> Posted on August 19, 2013 4:39 am by Dan Tokaji
> 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 – 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.
> 
> 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 and a very useful search tool on the Lawyers’ Committee for Civil Rights’ website.  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).  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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