[EL] section 5 and access--response to dan and rick's post
JBoppjr at aol.com
JBoppjr at aol.com
Tue Aug 20 05:24:16 PDT 2013
I wonder what the cost is to covered jurisdictions to submit 207, 070
pointless submissions? Jim Bopp
In a message dated 8/19/2013 3:12:45 P.M. Eastern Daylight Time,
mjpitts at iupui.edu writes:
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-85899
444189. 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%
_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu
http://department-lists.uci.edu/mailman/listinfo/law-election
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20130820/cd5bcf64/attachment.html>
View list directory