<x-flowed>I think Mike is correct that when a Section 5 jurisdiction alters the powers and duties of a government official relating to the authority to adopt or administer voting changes, that is a covered voting change, notwithstanding the Presley decision (where the issue was whether changes in powers and duties about matters unrelated to voting -- there, the administration of county road systems -- are covered changes).

The DOJ conclusion to the contrary in the Ga. letter is odd not only because, as Mike points out, it is inconsistent with DOJ's past practice in general, it is inconsistent with a very well known Section 5 action taken four years ago by this same Administration.  That is, four years ago, in reviewing the Ms. congressional redistricting plan adopted by a state chancery court, DOJ chose to request additional information with regard to the apparent change in state practice allowing state chancery courts the authority to adopt a congressional redistricting plan in the absence of legislative action (DOJ did not ask for additional informaton regarding the submitted plan itself, which was unremarkable as far as Section 5 was concerned).  It was this additional info request which ultimately allowed a federal court to impose its redistricting plan, a plan that was more favorable to Republicans, and it was this request which various individuals (including myself) have charged was politically motivated.  The Supreme Court subsequently reviewed this additional info request, and noted without disagreement DOJ's view that a change in a state official's authority to adopt a voting change is covered by Section 5.  Branch v. Smith, 538 U.S. 254 (2003).

Mark Posner

----- Original Message ----- From: "Michael Pitts" <mpitts3@unl.edu>
To: "'election-law'" <election-law@majordomo.lls.edu>
Sent: Monday, April 24, 2006 10:37 PM
Subject: RE: does anyone have a copy of the DOJ preclearance letter in Georgia?

Leaving aside the voter identification provision for a second (and to raise
a question that's probably only of interest to Section 5 geeks such as
myself), is anyone else perplexed by DOJ's decision to make "no
determination" to the assignment of a voter education program to the State
Election Board because this change is not covered by Section 5?



I understand Presley v. Etowah County Commission says Section 5 does not
apply to the reassignment of powers and duties among elected officials.
However, isn't that only when the powers and duties are NOT related to
voting?  In other words, when changes in powers and duties have a direct
relation to voting (and seemingly a voter education program would be
directly related to voting), they are covered under Section 5.  Indeed, I
think this is the way DOJ has traditionally interpreted Presley.



Am I missing something here?



Best,

Mike Pitts



Visiting Assistant Professor
University of Nebraska College of Law
P.O. Box 830902
Lincoln, NE 68583-0902
402-472-1251
mpitts3@unl.edu

 _____

From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Daniel Tokaji
Sent: Monday, April 24, 2006 12:25 PM
To: 'Rick Hasen'; 'election-law'
Subject: RE: does anyone have a copy of the DOJ preclearance letter in
Georgia?



The letter may be found on the election
<http://moritzlaw.osu.edu/electionlaw/litigation/common-cause.php>  law
litigation page for Common Cause v. Jones on the EL@M site:

http://moritzlaw.osu.edu/electionlaw/litigation/documents/DOJpreclearancelet
ter.pdf



Daniel P. Tokaji

Assistant Professor of Law

The Ohio State University

Moritz College of Law

614.292.6566

http://moritzlaw.osu.edu/blogs/tokaji/

 _____

From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Rick Hasen
Sent: Monday, April 24, 2006 12:40 PM
To: election-law
Subject: does anyone have a copy of the DOJ preclearance letter in Georgia?



I could not find it posted on the DOJ website.

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org

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