[EL] Section 5 of the VRA thought

[Derek Muller]

I agree that the coverage formula is the fundamental problem in *Shelby
County*, but I don't think one can untether the Section 5 analysis from
Section 4. Suppose, for instance, that Section 5 only required preclearance
of, say, federal congressional redistricting maps. Almost however you slice
the analysis, from a "states' rights" perspective or a "congruence and
proportionality" rationale, the remedial scheme is much more limited in
this hypothetical than the actual Section 5, and I imagine it would be much
easier for the Court to uphold the coverage under Section 4.

So, yes, the fundamental problems comes from Congress's failure to update
the coverage formula in Section 4. But, I think it's still inextricably
linked to the remedial scheme of Section 5.

Best,

Derek

Derek T. Muller

Associate Professor of Law

Pepperdine University School of Law

24255 Pacific Coast Hwy.

Malibu, CA 90263

+1 310-506-7058

SSRN Author Page: http://ssrn.com/author=464341

On Thu, Jan 10, 2013 at 10:09 AM, 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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