[EL] Texas and DOJ "discrimination"
Justin Levitt
levittj at lls.edu
Wed Aug 27 23:28:28 PDT 2014
Rick links to Texas's argument about "partisan and racially
discriminatory" enforcement of the VRA, and as evidence, Texas states
that "DOJ has declined to use section 2 to challenge similar voter ID
laws enacted in eleven other states." There are (at least) three big
problematic assumptions or assertions embedded in this sentence that I
think are dangerously widespread.
The first assumption is that DOJ has unlimited legal resources, and
could easily challenge laws in all eleven states if it wished, but has
affirmatively decided to forego such challenges. This sort of
assumption was particularly widespread in the discussions about whether
other provisions can compensate for section 5 of the VRA. DOJ has a lot
of resources, yes -- but also a lot of priorities. The fact that DOJ
has brought some suits doesn't necessarily mean that they have
affirmatively declined to bring others. Maybe they have, maybe they
haven't. All we know that it means is that they haven't brought others yet.
The second assumption is that the 11 states Texas cites have similar ID
laws, including Ohio and South Carolina and Wisconsin in the same
breath. The national discussion around ID seems constantly to assume
that the only two options are "on" or "off." Ohio and South Carolina and
Wisconsin have similar ID laws in the same way that a 0.02% tax is
similar to an 85% tax, because they're both taxes. Ohio allows a wide
range of photo and non-photo identification at the polls, from public or
private sources -- and allows no-excuse absentee balloting. South
Carolina requires a photo ID unless an individual has a reasonable
impediment to getting that ID, and any reasonable impediment will
suffice. Wisconsin (before the law was struck down under section 2)
required a photo ID for both in-person and absentee balloting, period.
There's a lot more variety in ID laws
<http://blog.constitutioncenter.org/2013/10/voter-id-update-the-diversity-in-the-details/>
than Texas acknowledges.
The third assumption is that section 2 has anything to say about ID laws
generally, in the abstract -- if DOJ attacks one, section 2 demands that
it must attack them all. This view -- also disturbingly common -- casts
section 2 as an overly blunt tool. In reality, section 2 is a nuanced
statute, where liability depends on the real impact on local minority
voters and real context -- the "totality of the circumstances" -- of
local jurisdictions' present and historical relationships with those
minority voters. Those factors are different from place to place. It's
entirely possible to say that section 2 might treat a Kansas law
differently from a Texas law, because minorities aren't the same in
Kansas and Texas, and don't face the same political or historical
context. Yet Texas assumes that the Voting Rights Act must demand
exactly the same outcome for differently situated minorities in
different local jurisdictions, which is actually _unequal_ treatment,
not equal treatment -- and betrays a fairly retrograde essentialist
conception of race, at that. Sadly, Texas isn't alone on this score
either. Self-promotion alert: I've just written a piece
<http://ssrn.com/abstract=2487426> on this phenomenon in the
redistricting context (hint: Texas shows up here too), with a bunch of
states in the current cycle seemingly deploying the Voting Rights Act as
a cookie-cutter, and ignoring the fact that the statute demands
attention to local electoral context.
--
Justin Levitt
Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321
On 8/27/2014 8:52 PM, Rick Hasen wrote:
>
>
> More on Texas's Argument DOJ Too Partisan to Enforce Voting Rights
> Act <http://electionlawblog.org/?p=64736>
>
> Posted onAugust 27, 2014 11:09 am
> <http://electionlawblog.org/?p=64736>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> In anearlier post, <http://electionlawblog.org/?p=64248>I noted this
> filing
> <http://moritzlaw.osu.edu/electionlaw/litigation/documents/Veasey4481.pdf> of
> the state of Texas in the voter id case (particularly pages 13-23),
> raising an affirmative defense to DOJ's claims that Texas's voter id
> law violates section 2 of the Voting Rights Act and that Texas's
> intentional racial discrimination in voting gives the court discretion
> to cover Texas again under a preclearance regime under section 3 of
> the Voting Rights Act. Texas argues that section 3 is not appropriate
> because DOJ is partisan and has applied the Voting Rights Act in an
> unfair and unconstitutional manner, especially against Texas and other
> state formerly covered by section 5.
>
> Texas has now fileda response
> <http://moritzlaw.osu.edu/electionlaw/litigation/documents/Veasey5401.pdf>to
> DOJ's motion to strike the affirmative defense. In part, Texas's
> response reads:
>
> The United States seeks bail-in and must therefore prove that it
> is justified. Defendants, in turn, must respond and demonstrate
> that it is not. See Fed. R. Civ. Pro. 8(b)(1)(A) ("In responding
> to a pleading, a party must state in short and plain terms its
> defenses to each claim asserted against it."). Given the rare and
> serious nature of bail-in as a remedy, a court weighing its
> justification should consider all relevant factors, including
> among other things the manner in which the VRA is enforced by the
> entity charged with enforcing it. Defendants allege in plain and
> simple terms that the Voting Section, Civil Rights Division of the
> Department of Justice enforces the VRA in a partisan and racially
> discriminatory manner, particularly with regard to voting laws in
> Texas. See, e.g., ECF No. 417 at 22 (stating that DOJ has declined
> to use section 2 to challenge similar voter ID laws enacted in
> eleven other states). Equitable relief under section 3(c) cannot
> be justified where the body of law under which it exists is
> enforced inequitably.
>
> Moreover, DOJ's unequal application of the VRA raises equal
> protection concerns under the Fourteenth Amendment--concerns that
> are particularly relevant to a section 3(c) analysis in the wake
> of Shelby County, where the Supreme Court placed the entire
> preclearance regime on tenuous constitutional grounds. See Shelby
> County, 133 S. Ct. at 2620 (holding that the very existence of a
> "preclearance" requirement raises grave constitutional
> questions"). Defendants' allegations and defenses are not offered
> for nothing; each one of them bears directly on these serious and
> relevant issues underlying the extraordinary act of bailing-in a
> State under section 3(c).
>
>
> Posted inDepartment of Justice
> <http://electionlawblog.org/?cat=26>,The Voting Wars
> <http://electionlawblog.org/?cat=60>,Voting Rights Act
> <http://electionlawblog.org/?cat=15>
>
>
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