A couple of thoughts about this:
1. Hauser seems to assume that the only bad consequence of
politicization is that DOJ will fail to interpose Section 5 objections
when they should interpose objections. But maybe a politicized DOJ will
object when it shouldn't -- or inappropriately manipulate the timing of
objections -- thus achieving for the incumbent political party a benefit
without really responding to discrimination. And perhaps such
politicized objections will hurt minority voters in the long run. That
"risk" (and I write this as someone who was a DOJ attorney in the
Clinton Administration, helping to defend against challenges to Section
5 objections interposed during the Bush I administration) means that the
existence of preclearance might create costs that have to be weighed in
the balance here.
2. To some extent, the hypothesis that the existence of voter
suppression proves that preclearance works is nonfalsifiable. I still
think, though, that you have to deal with the fact that so much voter
suppression takes place in noncovered jurisdictions. Are those
jurisdictions also doing lots of discrimination through voting changes
that would be covered by Section 5 if the jurisdictions were subject to
preclearance? Again, this is the kind of question that needs to be
answered to justify extension of Section 5.
====================================
Samuel R. Bagenstos
Professor of Law
Washington University School of Law
One Brookings Drive
St. Louis, MO 63130
314-935-9097
Personal Web Page:
http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
Disability Law Blog: http://disabilitylaw.blogspot.com/
jmh248@nyu.edu 3/14/2005 11:51:57 AM >>>
Re Bagenstos writing, "If vote suppression is the problem, why isn't
the
right answer to let Section 5 lapse and adopt in its place tough,
privately enforceable, nationwide prohibitions on vote suppression?"
1. Why are "tough, privately enforceable, nationwide prohibitions on
vote suppression" mutually exclusive with Section 5? Couldn't
pre-clearance be necessary but not sufficient, especially given the
serious "risk" (and I write this as someone who was in the DOJ's
Honors
Program from Fall '01 to October '03) that the Justice Department
process will be politicized?
2. Perhaps the reason why vote suppression is the primary outlet for
this sort of activity is that Section 5 pre-clearance works. I don't
think many on the list would believe that improvements in, say, air
quality mean that air quality control laws are unnecessary -- so why
is
this argument being made re the VRA?
Re non-voters:
One lesson I have learned in working in politics is that we know far
less about non-voters than many believe, so to imagine them
disproportionately Dem-leaning (as many in the Democratic party and
mainstream media have presumed), or anti-status quo (based, I guess,
on
Ventura/MN to the extent to which there is much of any actual basis),
or
anything else that suggests a fixed outlook (other than disaffection
from the process) is an error. There are certain statements one cam
make about non-voters demographically vis-a-vis voters, but non-voters
are not really a bloc.
And even to the extent to which certain attitudes can be gleaned from
static polling or focus groups... I'd be very reticent to act on those
verbal expressions, as people's actions and response to polling
questions can vary greatly, and I think are very likely to vary when
we're discussing why people don't vote. This Mark Blumenthal post is
a
good introduction to an important and complicated topic that I believe
basically no one fully understands:
http://www.mysterypollster.com/main/2005/02/when_respondent.html
Which is, to put it another way, why it is a cheap trick for anyone to
profess to be the voice of "non-voters."
[and I say this as someone at least sympathetic to mandatory voting in
theory, and someone who definitely believes that it is an outrage that
our current system of voting is so needlessly difficult, especially
for
working class voters]