[EL] Section 5 of the VRA thought

[Steve Kolbert]

Take a look at section 3(c), 42 U.S.C. 1973a(c). It essentially (with a
notable difference, see below) authorizes what Doug proposes, and is not
currently under challenge in the Shelby County litigation. If Doug and I
are talking about the same litigation, section 3(c) is the tool used in the
Garza litigation.

There's a helpful student note which discusses the provision in more
detail. See Travis Crum, NOTE: The Voting Rights Act's Secret Weapon:
Pocket Trigger Litigation and Dynamic Preclearance, 119 Yale L.J. 1992
(2010).

Notably, however, section 3(c) requires an actual showing of a
constitutional violation (discriminatory intent and effect) -- meaning,
more than just a section 2 violation alone (discriminatory effect alone).
So while it sidesteps the constitutional issues Mike discusses, it creates
a higher burden for plaintiffs.

That said, some conservative opponents of the current preclearance coverage
formula have endorsed a proposal along the lines Doug suggests, wherein a
section 2 violation alone, with or without an attendant constitutional
violation, would serve as the trigger for implementing a preclearance-style
regime in the particular jurisdiction. See
http://www.electionlawcenter.com/2012/12/03/hasen-gets-it-wrong-again.aspxSo
perhaps this type of provision is less controversial than one might
initially fear.

Steve Kolbert
(202) 422-2588
steve.kolbert at gmail.com
@Pronounce_the_T
 On Jan 10, 2013 1:14 PM, "Michael Dimino" <mrdimino at mail.widener.edu>
wrote:

>
> I agree with Doug that the coverage formula is likely to cause a greater
> problem for supporters of Section 5 than is the preclearance provision
> itself.  Thus, Shelby County may turn out to be more aptly described as a
> Section 4 case rather than as a Section 5 case.
>
> The coverage formula certainly is a narrower basis for invalidating the
> law.  It also is the basis of NAMUDNO's concern about the "departure from
> the fundamental principle of equal [State] sovereignty."  For those two
> reasons, I think that relying on the coverage formula as a way to strike
> down the reauthorization is going to be an attractive option, particularly
> for Chief Justice Roberts and Justice Kennedy.  In that context, it is
> probably worth noting that in the portion of NAMUDNO discussing the
> coverage formula, the Chief Justice's opinion for the Court cited Justice
> Kennedy's majority opinion in Miller v. Johnson as well as Justice
> Kennedy's concurrence in Georgia v. Ashcroft.
>
> All this said, the "fallback" option suggested by Doug would still be
> controversial.  It would alleviate the potential problem of relying on very
> old voting data to determine coverage, but it would push to the front
> burner the concerns about the constitutionality of Section 2.  That is,
> because Section 2 can be violated without there being a constitutional
> violation, there remains a substantial question -- especially if (as I
> suspect) City of Rome v. United States is inconsistent with City of Boerne
> v. Flores -- whether any remedy under Section 2 or Section 5 would be
> "congruent and proportional" to an unproven constitutional violation.
>
> Mike
>
>
> ------------------------------
> Original E-mail
>  From : Douglas Johnson [djohnson at ndcresearch.com] Date : 01/10/2013
> 12:35 PM To : 'Rick Hasen' [rhasen at law.uci.edu], "'law-election at uci.edu'"
> [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” <http://electionlawblog.org/?p=46087>
>
> Posted on January 10, 2013 7:48 am <http://electionlawblog.org/?p=46087>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/voting_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-supreme-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-voter-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.
>
> [image: Share]<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%20Rights%20Act%20Falls%3F%20Minority%20voters%20will%20lose%20a%20key%20bargaining%20chip%E2%80%9D&description=>
>
> 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
>   “Governor urges action on restoring voting rights, roads budget”<http://electionlawblog.org/?p=46084>
>
> Posted on January 10, 2013 7:43 am <http://electionlawblog.org/?p=46084>by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> News<http://www.timesdispatch.com/news/state-regional/government-politics/general-assembly/governor-urges-action-on-restoring-voting-rights-roads-budget/article_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.”
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D46084&title=%E2%80%9CGovernor%20urges%20action%20on%20restoring%20voting%20rights%2C%20roads%20budget%E2%80%9D&description=>
>
> Posted in felon voting <http://electionlawblog.org/?cat=66> | Comments Off
>   “Husted To Direct Local Boards To Investigate Voter Fraud, Suppression
> Cases, Will Renew Push For Uniform Voting Hours”<http://electionlawblog.org/?p=46081>
>
> Posted on January 10, 2013 7:40 am <http://electionlawblog.org/?p=46081>by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> An important report from the subscription only Gongwer News Service –
> Ohio.<http://www.gongwer-oh.com/programming/news.cfm?article_ID=820060201>
>
> 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>
> .
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D46081&title=%E2%80%9CHusted%20To%20Direct%20Local%20Boards%20To%20Investigate%20Voter%20Fraud%2C%20Suppression%20Cases%2C%20Will%20Renew%20Push%20For%20Uniform%20Voting%20Hours%E2%80%9D&description=>
>
> Posted in election administration <http://electionlawblog.org/?cat=18>, The
> Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
>   “Obama hasn’t reined in Big Money” <http://electionlawblog.org/?p=46079>
>
> Posted on January 10, 2013 7:34 am <http://electionlawblog.org/?p=46079>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.topic>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-20130108%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.
>
>  [image: Share]<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%20Money%E2%80%9D&description=>
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> |
> Comments Off
>   “Big political donation from modest home”<http://electionlawblog.org/?p=46077>
>
> Posted on January 10, 2013 7:32 am <http://electionlawblog.org/?p=46077>by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> WaPo<http://www.washingtonpost.com/politics/big-political-donation-from-modest-home/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.”
>
> [image: Share]<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=>
>
> 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 January 9, 2013 2:35 pm <http://electionlawblog.org/?p=46074>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.
>
>
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D46074&title=Quote%20of%20the%20Day&description=>
>
> 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 “Fix the Debt”<http://electionlawblog.org/?p=46071>
>
> Posted on January 9, 2013 1:21 pm <http://electionlawblog.org/?p=46071>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>
>
> [image: Share]<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=>
>
> Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>,
> lobbying <http://electionlawblog.org/?cat=28> | Comments Off
>   “Sword, Shield, and Compass: The Uses and Misuses of Racially Polarized
> Voting Studies in Voting Rights Enforcement”<http://electionlawblog.org/?p=46068>
>
> Posted on January 9, 2013 12:49 pm <http://electionlawblog.org/?p=46068>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.
>
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D46068&title=%E2%80%9CSword%2C%20Shield%2C%20and%20Compass%3A%20The%20Uses%20and%20Misuses%20of%20Racially%20Polarized%20Voting%20Studies%20in%20Voting%20Rights%20Enforcement%E2%80%9D&description=>
>
> 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 January 9, 2013 11:56 am <http://electionlawblog.org/?p=46064>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/B00AWWD5XU/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/1454815507/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=1454815507>
> .
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D46064&title=Remedies%3A%20Examples%20and%20Explanations%20Third%20Edition%20Now%20Available%20for%20the%20Kindle&description=>
>
> Posted in Remedies <http://electionlawblog.org/?cat=57> | Comments Off
>   “North Carolina Voter ID Law Could Impact 613,000 Voters, Report Says”<http://electionlawblog.org/?p=46061>
>
> Posted on January 9, 2013 11:01 am <http://electionlawblog.org/?p=46061>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-may.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.html>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_voter_id_law>in favor of the law on the campaign trail and has promised to sign it if it
> reaches his desk.”
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D46061&title=%E2%80%9CNorth%20Carolina%20Voter%20ID%20Law%20Could%20Impact%20613%2C000%20Voters%2C%20Report%20Says%E2%80%9D&description=>
>
> 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
>   “Advocates cheer SEC consideration of corporate disclosure rule”<http://electionlawblog.org/?p=46058>
>
> Posted on January 9, 2013 10:37 am <http://electionlawblog.org/?p=46058>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/securities/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.”
>
>
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D46058&title=%E2%80%9CAdvocates%20cheer%20SEC%20consideration%20of%20corporate%20disclosure%20rule%E2%80%9D&description=>
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> |
> Comments Off
>   “Revealed: The Massive New Liberal Plan to Remake American Politics”<http://electionlawblog.org/?p=46055>
>
> Posted on January 9, 2013 9:44 am <http://electionlawblog.org/?p=46055>by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Mother Jones<http://www.motherjones.com/politics/2013/01/democracy-initiative-campaign-finance-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.”
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D46055&title=%E2%80%9CRevealed%3A%20The%20Massive%20New%20Liberal%20Plan%20to%20Remake%20American%20Politics%E2%80%9D&description=>
>
> 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
>  “One mystery donor gave nonprofit Priorities USA $1.9M in 2011, 84% of
> total revenue” <http://electionlawblog.org/?p=46052>
>
> Posted on January 9, 2013 9:40 am <http://electionlawblog.org/?p=46052>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>
> .
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D46052&title=%E2%80%9COne%20mystery%20donor%20gave%20nonprofit%20Priorities%20USA%20%241.9M%20in%202011%2C%2084%25%20of%20total%20revenue%E2%80%9D&description=>
>
> 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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> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
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