Even in its diminished state, Section 5 is an extremely effective tool
for preventing voting discrimination against minorities. As anybody who
litigates Section 2 cases will tell you, they drain resources and they
take time. Section 5 is something that jurisdictions need to account
for in making voting changes, and when they fail to do so, Section 5
provides simple, cost-effective remedies. Below, I have attached a
couple of examples of what I am talking about.
The issue about the degree of voting discrimination outside the covered
areas speaks to whether the coverage formula should be expanded.
Here are the examples, which I have excerpted from an article:
When I worked at the Voting Section at DOJ, we brought a lawsuit in
January 2001 which alleged that the method of electing the County
Council of Charleston, South Carolina diluted minority voting strength
in violation of Section 2 of the Act. At the time, the County Council
was elected at-large. There was a de facto majority vote requirement
because elections were partisan. Even though African Americans were
about one third of the population in the County, only one of the
nine-member County Council was African American and he was not preferred
by African American voters. DOJ and private plaintiffs prevailed at
trial in the County Council case in March 2003 and Charleston County
unsuccessfully appealed the County Council case to the Supreme Court.
The case cost Charleston County taxpayers several million dollars in
attorneys' fees and litigation expenses, as well as the resources of the
federal government in bringing the case and holding a four week trial.
Conversely, when the South Carolina General Assembly tried to change the
method of electing the Charleston County School Board in a way that
would have diluted the minority vote, the use of the Section 5
preclearance provision stopped the change without a time consuming and
costly trial. The method of electing the Charleston County School Board
was similar to the method of electing the County Council, with one
crucial difference - elections were nonpartisan. This difference had a
significant impact; as of 2002, a majority of the Charleston County
School Board was black. Many of the black members had run against
multiple white candidates and won when the white vote split. Despite
the court ruling in March 2003, the South Carolina General Assembly
enacted a law in June 2003 that would make the School Board elections
partisan and leave the School Board with the same method of election
that had been recently found to violate Section 2. The Department of
Justice objected to the change to partisan elections in the School Board
elections under Section 5 and thereby prevented it from taking effect.
The Section 5 objection prevented the need for a lawsuit regarding the
method of electing the School Board and avoided the expenditure of
resources that occurred in the lawsuit.
Another example of the value of Section 5 is litigation brought by the
Lawyers' Committee and others on behalf of college students at Prairie
View A&M University, a historically black college in Waller County,
Texas. In late 2003, the Waller County District Attorney had threatened
Prairie View students with felony prosecution if they voted based on his
claim that they were not residents. The District Attorney's actions had
been part of a pattern and practice of suppressing student voting
rights. In the 1970's, the Waller County Registrar of Voters had
refused to register Prairie View students on residency grounds until the
federal courts ordered him to change policy. In the early 1990's, a
number of Prairie View students were indicted for illegal "voting."
Although the charges were dropped shortly thereafter, they certainly had
a chilling effect. We filed a case against the District Attorney on
February 6, 2004 to prevent him from engaging in threatening behavior.
Our immediate concern was the March 9, 2004 primary election in which
two Prairie View students were running, including one for County Board
of Commissioners. The case was settled nineteen days later.
However, the County Board voted on February 10 to reduce the amount of
early voting in the precinct closest to the school from seventeen hours
over two days to six hours in one day. This reduction was extremely
important to the students because they were going to be on spring break
on the day of the primary. On February 17, we filed a Section 5
enforcement action which alleged that the County was seeking to
implement the early voting changes without receiving preclearance.
Eight days later the Board voted to add a second day of early voting and
restore the total amount of early voting to seventeen hours at the
Prairie View precinct. This made a significant difference: almost 400
citizens voted at the Prairie View precinct on the second day of early
voting, and the Prairie View student running for the Board won his
primary by less than 50 votes.
-----Original Message-----
From: Samuel Bagenstos [mailto:srbagenstos@wulaw.wustl.edu]
Sent: Tuesday, March 15, 2005 9:54 AM
To: kousser@HSS.CALTECH.EDU; soverton@law.gwu.edu; Rick.Hasen@lls.edu;
jblacksher@ns.sympatico.ca
Cc: election-law@majordomo.lls.edu
Subject: Re: Without Section 5
I completely agree with Jim Blacksher. But I think it's important to
note that his points don't actually show that Section 5 is the right
tool, at this point in our history, for attacking the legacy of slavery,
segregation, and other forms of white supremacy. Morgan Kousser says
that but for Section 5, the Texas re-redistricting would have been even
worse, from the perspective of minority voters and Democrats. Maybe
(though I don't -- as a positive or normative matter -- expect the
Republican majority in Congress to be moved by the partisan argument).
But we need to make the case about why Section 5 is better than, say,
Section 2 for these purposes. If the answer is that the substantive
standard applied under Section 5 is more generous to voting rights
advocates than is the substantive standard applied under Section 2 --
which is what Morgan Kousser implies -- two responses suggest
themselves: One, why not amend Section 2 again to incorporate that
substantive standard? Two, why do we expect that if the courts have
gutted Section 2's substantive standard they won't also do the same
thing to Section 5's substantive standard? In fact, the courts have
been doing a pretty good job of gutting Section 5's substantive
standard.
A defense of the extension of Section 5 has to rest on a defense of the
procedure of preclearance. Why is preclearance the best tool to solve
today's very real voting rights problems? The fact that there's
continuing discrimination in covered jurisdictions (and also, by the
way, in noncovered jurisdictions) may help to support the
constitutionality of an extension of Section 5, but it doesn't make the
case that such an extension would be good policy.
====================================
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/
"James Blacksher" <jblacksher@ns.sympatico.ca> 3/15/2005 7:34:16 AM
Rick,
Overton, Gass and Hauser are right on point. The crucial point
being that the Voting Rights Act is strictly an artifact of American
history, Congress' response in the 1960s and 1980s to the legacy of
slavery, segregation and other forms of white supremacy in the politics
of this country. There has never been a time in our history when race
wasn't the trump card of partisan politics. First Federalists, then
Republicans, now Democrats have been labeled the party of blacks. As
for the present, no fair observer could conclude that racial politics
has been repudiated by partisans today. See, e.g., the attached news
article quoting the Republican Chairman in Alabama. Or read Montiel v.
Davis, 215 F.Supp.2d 1279, 1283 (S.D. Ala. 2002): plaintiffs do not
refute the sworn testimony of Mr. Sam Pierce, the expert designated by
plaintiff Montiel in both the Congressional action which was transferred
to the Middle District of Alabama and in the instant case, that black
census populations are so strongly correlated with Democratic voting
behavior throughout Alabama that, when he drew the Congressional plan
adopted by this Court in Wesch v. Hunt, 785 F.Supp. 1491, 1500
(S.D.Ala.1992)(three- judge court), and the plan proposed by Mr. Montiel
in the current Congressional redistricting litigation, he referred only
to census data and attempted to minimize the number of black persons
residing in districts he was designing to favor Republican candidates.
Judge Higginbotham's conclusion in Session v. Perry that partisan
motives neutralize the Voting Rights Act threatens the viability of the
Act and the Fifteenth Amendment. But, then, the project of redemption
is our heritage.
Jim Blacksher
James U. Blacksher, Attorney
710 Title Bldg.
300 N. Richard Arrington, Jr., Blvd.
Birmingham, AL 35203-3352
205-322-1100 or 205-591-7238
Fax: 866-845-4395
----- Original Message -----
From: "Spencer Overton" <soverton@law.gwu.edu>
To: "J. Morgan Kousser" <kousser@HSS.CALTECH.EDU>; "Rick Hasen"
<Rick.Hasen@lls.edu>
Cc: <election-law@majordomo.lls.edu>
Sent: Tuesday, March 15, 2005 4:49 AM
Subject: Re: Without Section 5
Rick Hasen wrote:
"In other words, if in fact it is partisan motive, rather than racial
motive, that animates packing reliably Democratic minority voters into
districts, is an anti-race discrimination statute justified as a means
for correction?"
Rick:
I am skeptical of bright lines between race and political
affiliation. Requirements of "racial animus" often mask the origins of
the genuine ideological divide between whites and people of color. A
number of studies have established that our racial history shapes the
political identity of many people of color, either directly or
indirectly. For example, a variety of factors that explain
contemporary political differences-such as the poverty, unemployment,
and inferior schools that challenge particular communities-often can be
traced back to racial history. Should we ignore the origins of these
differences simply because they might be couched as partisan, rather
than racial, positions? Equating political differences among racial
groups with partisan politics masks the racial inequality that gave rise
to the differences. It also gives license to political operatives to
exclude minority voters of color to win elections and inadvertently
perpetuate racial inequality.
Further, earlier generations of politicians used partisan advantage
rather than racial animus to justify suppression of voters of color, but
the political exclusion resulted in racial subordination. In the early
1800s, for example, blacks in New York state voted solidly against
Democrats and for Federalists, and as a result Democrats consistently
worked to suppress the black vote. Partisan "inspectors at the polls .
. . presumed as slaves all black men who could not prove their freedom
by sufficient evidence [and] [t]he Federalists denounced this practice,"
wrote Columbia University Professor Dixon Ryan Fox.
State Assemblyman Erastus Root's partisan affiliation with what
became the Democratic Party trumped his abolitionist leanings, and thus
he supported black disenfranchisement. Commenting on a particularly
close election Root noted that, "the votes of three hundred Negroes in
the city of New York, in 1813, decided the election in favor of the
Federal party, and also decided the political character of the
legislature of this state."
None of this is to say that once we recognize the unique dangers that
racial suppression poses we should not put limits on the use of race.
For example, we might not want to say that as the party of "blacks,"
Democrats are entitled to a particular quota of seats in a state
legislature or that party leaders have a free pass to manipulate black
populations within districts while Republicans are barred from similar
activity.
But even though there must be limits to race, it is illogical to
ignore the correlation between race and politics and profess that they
exist in two artificial and distinct boxes-racial animus and dirty but
tolerable politics. These approaches do not accurately describe the
bulk of challenges we face today that do not fit neatly into either
category. Our current discussion of race and politics is
counterproductive in that it encourages civil rights advocates to
attempt to prove that political strategists are "racists" to justify the
continued existence of voting rights protections.
Spencer Overton
Professor Spencer Overton
The George Washington University Law School
2000 H Street, NW, Washington, DC 20052
(202)994-9794
soverton@law.gwu.edu
http://www.law.gwu.edu/facweb/soverton/
THE DONOR CLASS (arguing that campaign reforms should encourage
candidates to raise the bulk of their funds from smaller contributors)
available at . . .
http://ssrn.com/abstract=569021
---------- Original Message ----------------------------------
From: Rick Hasen <Rick.Hasen@lls.edu>
Date: Mon, 14 Mar 2005 18:45:14 -0800
And would the Republicans in Texas be doing so out of racial animus,
or
out of animus against "black and Latino, as well as Anglo Democrats,
nationally as well as in Texas"? If the latter, is Section 5 the
proper
remedy? In other words, if in fact it is partisan motive, rather
than
racial motive, that animates packing reliably Democratic minority
voters
into districts, is an anti-race discrimination statute justified as
a
means for correction?
I ask these questions genuinely, not rhetorically.
Rick
J. Morgan Kousser wrote:
An interesting statement by Rep. Phil King, head of the TX House
Redistricting Committee in 2003, gives some sense of what the
world
might be like without Section 5 of the VRA. In a deposition in
Session v. Perry, the TX re-redistricting case, he said that but
for
Section 5, he'd have tried to draw a redistricting plan that would
have given the Republicans every one of Texas's congressional
seats.
I doubt that that's possible, but he certainly could have reduced
Democratic seats by cramming more minorities into a smaller number
of
districts if he hadn't had to satisfy Beer, Bossier I and II,
etc.
This of course would hurt black and Latino, as well as Anglo
Democrats, nationally as well as in Texas.
Since a post-Stevens Court will take any remaining air out of
Vieth,
and since Republicans can always apparently legally cover a racial
with a partisan motive under Section 2 and the 14th and 15th
Amendments -- see the evidence and opinions on the racial
discrimination issues in former congressional districts 23 and 24
in
Session v. Perry -- a failure to renew Section 5 will have quite
predictable consequences for African-American and Latino
representation: It will reduce it by encouraging Republicans to
pack
minorities into as few districts as possible, which they can
legalize
by claiming a partisan motive.
Vieth and the VRA really are connected.
Morgan
Prof. of History and Social Science, Caltech
snail mail: 228-77 Caltech, Pasadena, CA 91125
phone 626-395-4080
fax 626-405-9841
home page: <http://www.hss.caltech.edu/~kousser/Kousser.html>
(Newly
Revised!)
to order Colorblind Injustice:
http://uncpress.unc.edu/books/T-388.html
"Peace if possible, Justice at any rate" -- Wendell
Phillips
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
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