[EL] Section 5 of the VRA thought

Thu Jan 10 09:35:44 PST 2013

One persistent thought occurs to me as I read the various articles, blogs
and briefs about Section 5: my perception is that what is really at question
in the constitutionality debate is the basis for coverage of the current
Section 5 law, much more so than the Section 5 preclearance provisions
themselves.

My take-away from that thought, and what I am surprised has not received
more attention in the debate, is this: is there any constitutional problem
with Section 5-style preclearance being put in place for 5, 10 or even 20
years as part of the remedy in cases where there is a violation of Section 2
or other provisions of the VRA? I believe (but have not personally
confirmed) that this is essentially what was done in Los Angeles County in
the Garza case.

I suspect this is widely considered the "fallback" option among supporters
of Section 5 should the Court rule against that Section, but I have been
surprised by the lack of discussion on this idea. And I would think the case
for implementing this change is best made to the Court, rather than trying
to get it through the current Congress.

Am I missing some problem with the idea that Sec. 5 could constitutionally
live on as a remedy tool? Obviously there are policy arguments pro and con
to be made on this idea, and, equally obviously, this idea requires the
"what if" assumption that the Court considers the current coverage formula
unconstitutional, but do the "Section 5 is unconstitutional" arguments
extend so far as to block the idea of preclearance as a limited-time remedy
when a court finds a specific jurisdiction in violation of Section 2?

-        Doug

Douglas Johnson, Fellow

Rose Institute of State and Local Government

at Claremont McKenna College 

douglas.johnson at cmc.edu

310-200-2058 

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick
Hasen
Sent: Thursday, January 10, 2013 7:49 AM
To: law-election at uci.edu
Subject: [EL] ELB News and Commentary 1/10/13

 <http://electionlawblog.org/?p=46087> "What's Lost if the Voting Rights Act
Falls? Minority voters will lose a key bargaining chip" 

Posted on  <http://electionlawblog.org/?p=46087> January 10, 2013 7:48 am by
Rick Hasen <http://electionlawblog.org/?author=3>  

I've written this Jurisprudence essay
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/01/votin
g_rights_act_what_s_lost_if_the_supreme_court_kills_it.html> for Slate.  It
begins:

Odds are
<http://www.propublica.org/article/the-other-crucial-civil-rights-case-the-s
upreme-court-will-be-ruling-on> , the Supreme Court will strike down a key
provision of the Voting Rights Act after hearing a case from Alabama
<http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/>  that
will be argued next month. If the part of the law called Section 5 does
indeed go down, minority voters in Southern states and elsewhere will lose a
key bargaining chip. Section 5 has enabled them to beat back some attempts
to make it harder for them to vote, and helped insure that the gains they've
made in representation and redistricting are not rolled back. As another
recent fight over South Carolina's voter ID law shows, Section 5 still
serves a vital role in an era in which partisan legislatures may manipulate
election laws for political gain

I talk a lot about the recent South Carolina case over voter id. Last
Friday, the judges hearing the South Carolina case agreed that South
Carolina had won enough of its case to be entitled to recover its costs from
the United States.  But while some like Hans von Spakovsky
<http://blog.heritage.org/2013/01/07/south-carolina-beats-doj-again-over-vot
er-id-law/>  portray the fee award as a big loss for the government, that
misses the point. DOJ was right to bring this suit against a harsh voter id
law, and the law which was approved was very different from the one
originally submitted; the real winners of the litigation are the minority
voters in South Carolina who ended up with a much better law.

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D46087&title=%E2%80%9CWhat%E2%80%99s%20Lost%20if%20the%20Voting%20Right
s%20Act%20Falls%3F%20Minority%20voters%20will%20lose%20a%20key%20bargaining%
20chip%E2%80%9D&description=> Share

Posted in Department of Justice <http://electionlawblog.org/?cat=26> , voter
id <http://electionlawblog.org/?cat=9> , Voting Rights Act
<http://electionlawblog.org/?cat=15>  | Comments Off 

 <http://electionlawblog.org/?p=46084> "Governor urges action on restoring
voting rights, roads budget" 

Posted on  <http://electionlawblog.org/?p=46084> January 10, 2013 7:43 am by
Rick Hasen <http://electionlawblog.org/?author=3>  

News
<http://www.timesdispatch.com/news/state-regional/government-politics/genera
l-assembly/governor-urges-action-on-restoring-voting-rights-roads-budget/art
icle_eb869636-5193-5526-b811-46ce3f2d94fe.html>  from Virginia: "Gov. Bob
McDonnell called for automatic restoration of civil rights for nonviolent
felons during his annual State of the Commonwealth address Wednesday night,
committing his prestige to a proposal that his own party has resisted for
years."

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D46084&title=%E2%80%9CGovernor%20urges%20action%20on%20restoring%20voti
ng%20rights%2C%20roads%20budget%E2%80%9D&description=> Share

Posted in felon voting <http://electionlawblog.org/?cat=66>  | Comments Off 

 <http://electionlawblog.org/?p=46081> "Husted To Direct Local Boards To
Investigate Voter Fraud, Suppression Cases, Will Renew Push For Uniform
Voting Hours" 

Posted on  <http://electionlawblog.org/?p=46081> January 10, 2013 7:40 am by
Rick Hasen <http://electionlawblog.org/?author=3>  

An important report from the subscription only Gongwer News Service
<http://www.gongwer-oh.com/programming/news.cfm?article_ID=820060201> -
Ohio.

You can can read Husted's speech to the Ohio Association of Election
Officials at this link
<http://www.gongwer-oh.com/public/130/hustedspeech1-9.pdf> .

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D46081&title=%E2%80%9CHusted%20To%20Direct%20Local%20Boards%20To%20Inve
stigate%20Voter%20Fraud%2C%20Suppression%20Cases%2C%20Will%20Renew%20Push%20
For%20Uniform%20Voting%20Hours%E2%80%9D&description=> Share

Posted in election administration <http://electionlawblog.org/?cat=18> , The
Voting Wars <http://electionlawblog.org/?cat=60>  | Comments Off 

 <http://electionlawblog.org/?p=46079> "Obama hasn't reined in Big Money" 

Posted on  <http://electionlawblog.org/?p=46079> January 10, 2013 7:34 am by
Rick Hasen <http://electionlawblog.org/?author=3>  

LA Times
<http://www.latimes.com/news/nationworld/nation/la-na-obama-money-20130110,0
,2459413.story> :

Even before Barack Obama
<http://www.latimes.com/topic/politics/government/barack-obama-PEPLT007408.t
opic>  was sworn in as president the first time, he touted his efforts to
"change business as usual in Washington" by setting strict rules for his
inauguration: No corporate donations were allowed; individuals could give
only $50,000.

This time, Obama's inaugural committee is seeking million-dollar
contributions from corporations and offering perks in return, such as
tickets to the official ball. The six companies that have given so far
<http://www.latimes.com/news/politics/la-pn-inaugural-committee-donor-201301
08%2C0%2C5621307.story>  include AT&T, Microsoft and Financial Innovations,
a marketing company that received $15.7 million to produce merchandise for
Obama's reelection campaign and is the official vendor for the inauguration.
The committee has put no limit on how much individuals can give.

The relaxed rules reflect how Obama has largely dropped his efforts to curb
the role of money in politics, a cause he once vowed to make central to his
presidency.

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D46079&title=%E2%80%9CObama%20hasn%E2%80%99t%20reined%20in%20Big%20Mone
y%E2%80%9D&description=> Share

Posted in campaign finance <http://electionlawblog.org/?cat=10>  | Comments
Off 

 <http://electionlawblog.org/?p=46077> "Big political donation from modest
home" 

Posted on  <http://electionlawblog.org/?p=46077> January 10, 2013 7:32 am by
Rick Hasen <http://electionlawblog.org/?author=3>  

WaPo
<http://www.washingtonpost.com/politics/big-political-donation-from-modest-h
ome/2013/01/09/1f7e361c-5a86-11e2-9fa9-5fbdc9530eb9_story.html> : "One
million dollars is a big political contribution. It's even bigger for a
first-time political donor who lives in a $50,000 house."

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D46077&title=%E2%80%9CBig%20political%20donation%20from%20modest%20home
%E2%80%9D&description=> Share

Posted in campaign finance <http://electionlawblog.org/?cat=10> , chicanery
<http://electionlawblog.org/?cat=12>  | Comments Off 

Quote of the Day <http://electionlawblog.org/?p=46074>  

Posted on  <http://electionlawblog.org/?p=46074> January 9, 2013 2:35 pm by
Rick Hasen <http://electionlawblog.org/?author=3>  

""In Miami-Dade County, the ballot read like the book of Leviticus - though
not as interesting."

-Florida state senate president Don Gaetz, opining on the long lines in
Florida's 2012 election. From the same article
<http://politics.heraldtribune.com/2013/01/09/floridas-ballot-problem/> :

University of Florida Political Science Professor Dan Smith, whose expertise
is in the conduct of elections, believes the lines weren't caused by the
length of the ballot - noting that even in Miami-Dade County with its
biblical tome, there were major differences in lines, with people in some
precincts waiting several hours and those in others getting in and out
quickly.

Longer ballots probably do slow voters down some, Smith said.

"But the bottlenecks were processing people through . part of it was all the
provisional ballots that were pulling people off" the line, Smith said.

Smith argues that part of the 2011 election law overhaul that required some
people who had moved to a new county to vote on a provisional ballot - which
can take longer - was more of a culprit than the length of the ballot.

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D46074&title=Quote%20of%20the%20Day&description=> Share

Posted in election administration <http://electionlawblog.org/?cat=18> , The
Voting Wars <http://electionlawblog.org/?cat=60>  | Comments Off 

Nick Confessore Looks Under the Hood at
<http://electionlawblog.org/?p=46071> "Fix the Debt" 

Posted on  <http://electionlawblog.org/?p=46071> January 9, 2013 1:21 pm by
Rick Hasen <http://electionlawblog.org/?author=3>  

and finds some interesting connections.
<http://www.nytimes.com/2013/01/10/us/politics/behind-debt-campaign-ties-to-
corporate-interests.html?hp> 

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D46071&title=Nick%20Confessore%20Looks%20Under%20the%20Hood%20at%20%E2%
80%9CFix%20the%20Debt%E2%80%9D&description=> Share

Posted in legislation and legislatures <http://electionlawblog.org/?cat=27>
, lobbying <http://electionlawblog.org/?cat=28>  | Comments Off 

 <http://electionlawblog.org/?p=46068> "Sword, Shield, and Compass: The Uses
and Misuses of Racially Polarized Voting Studies in Voting Rights
Enforcement" 

Posted on  <http://electionlawblog.org/?p=46068> January 9, 2013 12:49 pm by
Rick Hasen <http://electionlawblog.org/?author=3>  

Kareem Crayton has posted this draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2187319>  on SSRN.  Here
is the abstract:

This article addresses the multiple functions of racially polarized voting
(RPV) studies, an essential element of voting rights enforcement. This type
of social science analysis figures into the doctrine of voting rights in
several ways, but not all of its different roles have been fully appreciated
or utilized by scholars, policymakers, or the courts. In fact, several
recent illustrations show that this information has been misused. By
developing the three distinct functions for RPV, this article demonstrates
that only its traditional function as affirmative evidence of racial
discrimination has been fully advanced in the discourse. By comparison, the
"shield" and "compass" uses of RPV (which, respectively, refer to a
preemptive review of a jurisdiction's exposure to legal claims of vote
dilution and the assessment of changes in the geographic scope and depth of
racially-biased voting patterns) demand greater attention. The article
concludes by offering several practical recommendations for actors to
improve efforts to utilize these two other functions of RPV.

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3Fp%3D46068&title=%E2%80%9CSword%2C%20Shield%2C%20and%20Compass%3A%20The%20U
ses%20and%20Misuses%20of%20Racially%20Polarized%20Voting%20Studies%20in%20Vo
ting%20Rights%20Enforcement%E2%80%9D&description=> Share

Posted in voting <http://electionlawblog.org/?cat=31> , Voting Rights Act
<http://electionlawblog.org/?cat=15>  | Comments Off 

Remedies: Examples and Explanations Third Edition Now Available for the
Kindle <http://electionlawblog.org/?p=46064>  

Posted on  <http://electionlawblog.org/?p=46064> January 9, 2013 11:56 am by
Rick Hasen <http://electionlawblog.org/?author=3>  

Hot off the digital presses.  You can download it here.
<http://www.amazon.com/Examples-Explanations-Remedies-Edition-ebook/dp/B00AW
WD5XU/ref=tmm_kin_title_0?ie=UTF8&qid=1357761219&sr=1-9> 

Amazon does not have the hard copy paperback
<http://www.amazon.com/Examples-Explanations-Remedies-Third-Edition/dp/14548
15507/ref=tmm_pap_title_0?ie=UTF8&qid=1357761219&sr=1-9>  in stock yet, but
you can order it directly from the publisher
<http://www.aspenpublishers.com/Product.asp?catalog_name=Aspen&product_id=14
54815507> .

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D46064&title=Remedies%3A%20Examples%20and%20Explanations%20Third%20Edit
ion%20Now%20Available%20for%20the%20Kindle&description=> Share

Posted in Remedies <http://electionlawblog.org/?cat=57>  | Comments Off 

 <http://electionlawblog.org/?p=46061> "North Carolina Voter ID Law Could
Impact 613,000 Voters, Report Says" 

Posted on  <http://electionlawblog.org/?p=46061> January 9, 2013 11:01 am by
Rick Hasen <http://electionlawblog.org/?author=3>  

Ryan Reilly
<http://www.huffingtonpost.com/2013/01/09/north-carolina-voter-id_n_2440916.
html>  for HuffPo: "As Republicans in North Carolina make a renewed push to
pass a voter ID law, a new report from the State Board of Elections suggests
that nearly one in ten voters lack state-issued photo identification. The
report shows
<http://www.newsobserver.com/2013/01/08/2591746/dome-some-600000-nc-voters-m
ay.html#storylink=cpy>  that up to 613,000 voters, about 9.25 percent of all
registered voters in North Carolina, lack state-issued photo identification.
Former Gov. Bev Perdue (D) vetoed
<http://www.huffingtonpost.com/2012/10/17/election-laws-blocked_n_1974482.ht
ml>  a voter ID law passed by the Republican-controlled legislature in 2011.
But current Gov. Pat McCrory, a Republican, spoke out
<http://www.dailytarheel.com/index.php/article/2012/04/mccrory_pushes_for_vo
ter_id_law>  in favor of the law on the campaign trail and has promised to
sign it if it reaches his desk."

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D46061&title=%E2%80%9CNorth%20Carolina%20Voter%20ID%20Law%20Could%20Imp
act%20613%2C000%20Voters%2C%20Report%20Says%E2%80%9D&description=> Share

Posted in election administration <http://electionlawblog.org/?cat=18> , The
Voting Wars <http://electionlawblog.org/?cat=60> , voter id
<http://electionlawblog.org/?cat=9>  | Comments Off 

 <http://electionlawblog.org/?p=46058> "Advocates cheer SEC consideration of
corporate disclosure rule" 

Posted on  <http://electionlawblog.org/?p=46058> January 9, 2013 10:37 am by
Rick Hasen <http://electionlawblog.org/?author=3>  

LA Times
<http://www.latimes.com/news/politics/la-pn-sec-campaign-spending-disclosure
-20130108,0,55217.story> :  "A decision by the U.S. Securities and Exchange
Commission
<http://www.latimes.com/topic/economy-business-finance/market-exchange/secur
ities/u.s.-securities-exchange-commission-ORGOV000050.topic>  to consider a
new rule this year requiring companies to release information about their
political spending has buoyed disclosure advocates, who say such a move
could be a game-changer in their quest for more transparency."

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D46058&title=%E2%80%9CAdvocates%20cheer%20SEC%20consideration%20of%20co
rporate%20disclosure%20rule%E2%80%9D&description=> Share

Posted in campaign finance <http://electionlawblog.org/?cat=10>  | Comments
Off 

 <http://electionlawblog.org/?p=46055> "Revealed: The Massive New Liberal
Plan to Remake American Politics" 

Posted on  <http://electionlawblog.org/?p=46055> January 9, 2013 9:44 am by
Rick Hasen <http://electionlawblog.org/?author=3>  

Mother Jones
<http://www.motherjones.com/politics/2013/01/democracy-initiative-campaign-f
inance-filibuster-sierra-club-greenpeace-naacp> : "At the end of the day,
many of the attendees closed with a pledge of money and staff resources to
build a national, coordinated campaign around three goals: getting big money
out of politics, expanding the voting rolls while fighting voter ID laws,
and rewriting Senate rules to curb the use of the filibuster to block
legislation."

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D46055&title=%E2%80%9CRevealed%3A%20The%20Massive%20New%20Liberal%20Pla
n%20to%20Remake%20American%20Politics%E2%80%9D&description=> Share

Posted in campaign finance <http://electionlawblog.org/?cat=10> , election
administration <http://electionlawblog.org/?cat=18> , legislation and
legislatures <http://electionlawblog.org/?cat=27> , The Voting Wars
<http://electionlawblog.org/?cat=60>  | Comments Off 

 <http://electionlawblog.org/?p=46052> "One mystery donor gave nonprofit
Priorities USA $1.9M in 2011, 84% of total revenue" 

Posted on  <http://electionlawblog.org/?p=46052> January 9, 2013 9:40 am by
Rick Hasen <http://electionlawblog.org/?author=3>  

Michael Beckel flags
<https://twitter.com/mjbeckel/status/289062751253430272>  a key finding in
this Open Secrets report
<http://www.opensecrets.org/news/2013/01/obamas-shadow-money-allie.html> .

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D46052&title=%E2%80%9COne%20mystery%20donor%20gave%20nonprofit%20Priori
ties%20USA%20%241.9M%20in%202011%2C%2084%25%20of%20total%20revenue%E2%80%9D&
description=> Share

Posted in campaign finance <http://electionlawblog.org/?cat=10> , tax law
and election law <http://electionlawblog.org/?cat=22>  | Comments Off 

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org

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