[EL] Section 5 of the VRA thought

[Michael McDonald]

The people who think Section 5 is doomed now also thought it was doomed
prior to NAMUDNO. I remain skeptical that Kennedy wants to go down in
history as the Justice Who Killed the Voting Rights Act (I know that is
hyperbole).

============
Dr. Michael P. McDonald
Associate Professor
George Mason University
4400 University Drive - 3F4
Fairfax, VA 22030-4444

703-993-4191 (office)
e-mail:  mmcdon at gmu.edu               
web:     http://elections.gmu.edu
twitter: @ElectProject     

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Douglas
Johnson
Sent: Thursday, January 10, 2013 12:36 PM
To: 'Rick Hasen'; 'law-election at uci.edu'
Subject: Re: [EL] Section 5 of the VRA thought

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

“What’s Lost if the Voting Rights Act Falls? Minority voters will lose a key
bargaining chip” 
Posted on January 10, 2013 7:48 am by Rick Hasen 
I’ve written this Jurisprudence essay for Slate.  It begins:
Odds are, the Supreme Court will strike down a key provision of the Voting
Rights Act after hearing a case from Alabama 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 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.

Posted in Department of Justice, voter id, Voting Rights Act | Comments Off 
“Governor urges action on restoring voting rights, roads budget” 
Posted on January 10, 2013 7:43 am by Rick Hasen 
News 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.”

Posted in felon voting | Comments Off 
“Husted To Direct Local Boards To Investigate Voter Fraud, Suppression
Cases, Will Renew Push For Uniform Voting Hours” 
Posted on January 10, 2013 7:40 am by Rick Hasen 
An important report from the subscription only Gongwer News Service – Ohio.
You can can read Husted’s speech to the Ohio Association of Election
Officials at this link.

Posted in election administration, The Voting Wars | Comments Off 
“Obama hasn’t reined in Big Money” 
Posted on January 10, 2013 7:34 am by Rick Hasen 
LA Times:
Even before Barack Obama 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
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.

Posted in campaign finance | Comments Off 
“Big political donation from modest home” 
Posted on January 10, 2013 7:32 am by Rick Hasen 
WaPo: “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.”

Posted in campaign finance, chicanery | Comments Off 
Quote of the Day 
Posted on January 9, 2013 2:35 pm by Rick Hasen 
“”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:
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.
 

Posted in election administration, The Voting Wars | Comments Off 
Nick Confessore Looks Under the Hood at “Fix the Debt” 
Posted on January 9, 2013 1:21 pm by Rick Hasen 
and finds some interesting connections.

Posted in legislation and legislatures, lobbying | Comments Off 
“Sword, Shield, and Compass: The Uses and Misuses of Racially Polarized
Voting Studies in Voting Rights Enforcement” 
Posted on January 9, 2013 12:49 pm by Rick Hasen 
Kareem Crayton has posted this draft 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.

Posted in voting, Voting Rights Act | Comments Off 
Remedies: Examples and Explanations Third Edition Now Available for the
Kindle 
Posted on January 9, 2013 11:56 am by Rick Hasen 
Hot off the digital presses.  You can download it here.
Amazon does not have the hard copy paperback in stock yet, but you can order
it directly from the publisher.

Posted in Remedies | Comments Off 
“North Carolina Voter ID Law Could Impact 613,000 Voters, Report Says” 
Posted on January 9, 2013 11:01 am by Rick Hasen 
Ryan Reilly 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 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 a voter ID law passed by
the Republican-controlled legislature in 2011. But current Gov. Pat McCrory,
a Republican, spoke out in favor of the law on the campaign trail and has
promised to sign it if it reaches his desk.”

Posted in election administration, The Voting Wars, voter id | Comments Off 
“Advocates cheer SEC consideration of corporate disclosure rule” 
Posted on January 9, 2013 10:37 am by Rick Hasen 
LA Times:  “A decision by the U.S. Securities and Exchange Commission 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.”
 

Posted in campaign finance | Comments Off 
“Revealed: The Massive New Liberal Plan to Remake American Politics” 
Posted on January 9, 2013 9:44 am by Rick Hasen 
Mother Jones: “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.”

Posted in campaign finance, election administration, legislation and
legislatures, The Voting Wars | Comments Off 
“One mystery donor gave nonprofit Priorities USA $1.9M in 2011, 84% of total
revenue” 
Posted on January 9, 2013 9:40 am by Rick Hasen 
Michael Beckel flags a key finding in this Open Secrets report.

Posted in campaign finance, tax law and election law | 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