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

[Spencer Overton]

I agree that the insights provided by Justin and Brenda are very important.

Two other observations....

1) Expanding access differs from preventing discrimination--just as
expanding home ownership through a tax deduction differs from preventing
predatory lending.  Granted, sometimes discrimination is practiced by
restricting access--but the two concepts differ.  Section 5 was not a rigid
rule that was easily circumvented.  As Joey mentioned, it adapted to
prevent discrimination.  Regardless of pro-access federal rules announced,
states and localities will continue to maintain significant discretion over
elections.  An updated Voting Rights Act should prevent this discretion
from being exercised in a discriminatory manner.

2)  I agree with many of the pro-access reforms Rick and Dan mention, but
the states may be the best places to push them.  Right now, I suspect some
of Rick and Dan's reforms would not attract bipartisan support in Congress
(and indeed may be polarizing and undermine bipartisan efforts to update
the Act).  Even if passed they may not effectively prevent many types of
discrimination at the state and local level (including about 87% of the
changes to which DOJ objected since 2000).

I expect to publish a piece in the American Prospect later this week that
expands on these points.

Thanks,
Spencer


On Mon, Aug 19, 2013 at 7:24 PM, Brenda Wright <bwright at demos.org> wrote:

>  This set of exchanges (and the original post that prompted it) have been
> very interesting and informative.  One additional point occurs to me.  It
> may be worth considering that redistricting, unlike many other kinds of
> voting changes, might be expected to have a higher rate of objections
> simply because "change" in redistricting plans is *required* every
> decade, because of one-person, one-vote requirements that are independent
> of racial issues.  I realize that the authors have taken the frequency of
> changes into account by calculating a rate for objections (comparing number
> of objections to number of proposed changes).  But that may not fully take
> into account all the dynamics at play.  This occurs to me especially in
> light of Justin's point -- that most of the redistricting objections are
> entered at the county and local level.
>
> The one person, one vote requirement means that every local governing body
> that uses district-based elections *must* change its voting procedures
> after each Census, simply to deal with population shifts (perhaps there are
> a few exceptions but those would be rare).  By contrast, fewer changes
> regarding access to voting or registration are "required" by some outside,
> independent principle.  Such changes, because they are less likely to be
> required by some outside impetus, might have a higher threshold of inertia
> to overcome before gettting enacted, and might not have gotten enacted in
> the first instance (when Section 5 was fully in effect) if there were
> obvious objections based on discriminatory results or purpose.  If there is
> no change, there is nothing for DOJ to review.
>
> In contrast, local jurisdictions have no choice but to do redistricting
> every decade; the choice is not between the status quo and a new plan --
> it's only about what new plan to enact.  So it might not be surprising that
> a higher percentage of such required changes have been met with
> objections.  And that higher rate may not indicate that redistricting
> changes are somehow more in need of Section 5 review, or conversely that
> the lower rate of objections to voting and registration changes means
> that review is less needed.  Also, changes in voting qualifications or
> registration requirements are more likely to be made at the state level,
> not the local level, so by their nature they might have been subject to a
> higher threshold before a change was enacted (pre-Shelby, that is).
>
> Indeed, the North Carolina legislation may be a perfect example of how
> removing the barrier of Section 5 emboldens the kinds of restrictions on
> registration and voting that covered states had to think twice about
> previously.
>
> -Brenda
>
>
>  ------------------------------
>  *From:* law-election-bounces at department-lists.uci.edu [
> law-election-bounces at department-lists.uci.edu] On Behalf Of Justin Levitt
> [levittj at lls.edu]
> *Sent:* Monday, August 19, 2013 5:55 PM
> *To:* law-election at department-lists.uci.edu
> *Subject:* Re: [EL] section 5 and access--response to dan and rick's post
>
>   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  90015213-736-7417justin.levitt at lls.edussrn.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<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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-- 

Spencer Overton <http://spenceroverton.com/>
Professor of Law
Director, GW Political Law Studies
Initiative<http://www.law.gwu.edu/Academics/research_centers/politicallaw/Pages/AboutPLSI.aspx>
Stealing Democracy <http://www.stealingdemocracy.com/excerpts.cfm>
(book), Discrimination
in Covered States<http://www.scotusblog.com/2013/02/shelby-county-v-holder-voting-discrimination-remains-concentrated-in-covered-states/>
, Racial Entitlement<http://www.huffingtonpost.com/spencer-overton/voting-rights-act-supreme-court_b_2780810.html>,
The Other Voting
Case<http://www.huffingtonpost.com/spencer-overton/arizona-voting-supreme-court_b_2895728.html>
 (commentaries)
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