Subject: Re: VRA Renewal Battle Coming
From: Rick Hasen
Date: 5/3/2006, 1:55 PM
To: Rick Hasen
CC: Michael Pitts <mpitts3@unl.edu>, "'election-law'" <election-law@majordomo.lls.edu>, "'Mark & Franca Posner'" <fmposner@verizon.net>

The summary provided to me (and posted here: http://electionlawblog.org/archives/VRARA%20summary.wpd) explains the theory of what sections 5 (a)-(d) are supposed to accomplish (though I don't think the language necessarily accomplishes what this summary says it accomplishes) (footnotes omitted):

Section 5 (Criteria for Declaratory Judgment).  Section 5 of the VRA (42 U.S.C. 1973c) requires covered jurisdictions to preclear all voting changes with either the Department of Justice or the U.S. District Court for the District of Columbia.  Two Supreme Court decisions (Reno v. Bossier Parish (“Bossier II”) and Georgia v. Ashcroft) have significantly narrowed Section 5's effectiveness.  The changes Section 5 of the VRARA makes to Section 5 of the VRA will:

●    Make clear that Congress rejects the Supreme Court’s holding in Reno v. Bossier Parish, by making clear that, contrary to that decision, “retrogression” is not the only violation of voting rights the preclearance procedures protect against, and that a voting rule change motivated by any discriminatory purpose also cannot be precleared.  The VRARA does this by creating new subsections (b) and (c) to Section 5 that state:

        (b) Any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color, or in contravention of the guarantees set forth in section 4(f)(2), to elect their preferred candidates of choice denies or abridges the right to vote within the meaning of subsection (a) of this section.

        (c) The term “purpose” in subsections (a) and (b) of this section shall include any discriminatory purpose.

●    Make clear that Congress partly rejects the Supreme Court’s decision in Georgia v. Ashcroft.   Before the Supreme Court’s decision in Georgia v. Ashcroft, it was clear that the Voting Rights Act served to protect the minority community’s ability to elect their preferred candidates of choice.  However, Justice O’Connor, writing for a 5-4 majority, held in Georgia v. Ashcroft that “In assessing the totality of the circumstances, a court should not focus solely on the comparative ability of a minority group to elect a candidate of its choice.”  This vague and open-ended “totality of the circumstances” test opened the door to allow all manner of undefined considerations to trump the minority’s choice of candidate, and the dissent in the Georgia v. Ashcroft case correctly pointed out that a “totality of the circumstances” under Section 5 is hopelessly unadministerable by the Department of Justice because such a concept does not retain “the anchoring reference to electing a candidate of choice.”  VRARA restores the standard articulated in Beer v. United States.   To restore the original meaning of Section 5 of the Voting Rights Act, the VRARA makes clear, in a new subsection (d), that:

        (d) The purpose of subsection (b) of this section is to protect the ability of such [minority] citizens to elect their preferred candidates of choice.


Rick Hasen wrote:
If that's the case, then the language should be redrafted with a BCRA-like backup clause or at least an explicit severability clause.  As the new section 5 is written, it is a mess from the point of view of statutory interpretation.
Rick

Michael Pitts wrote: 
Perhaps the way the substantive standard is written is that it's intended to
be severable.  In other words, if the Court decides that Section 5 would be
unconstitutional if Bossier II is reversed (and Scalia hints in Bossier II
that it might be), then the Court can strike subsection (c), but that will
still preserve the intent to retrogress framework from (b).  With the same
going for subsection (c)--that if the Court decides that Section 5 would be
unconstitutional if Georgia v. Ashcroft is reversed then Section (b) serves
to preserve the post-Georgia retrogression standard.

Best,
Mike

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

-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Mark & Franca
Posner
Sent: Wednesday, May 03, 2006 12:32 PM
To: Rick Hasen; election-law
Subject: Re: VRA Renewal Battle Coming

I agree that sections 5(b), (c), and (d) are less than transparently clear 
and completely direct in stating a "purpose or effect" standard that 
encompasses a reversal of Bossier II and Ashcroft.  Section 5(b) sounds a 
lot like "purpose to retrogress" though perhaps 5(c) in combination with the

findings gets you back to the pre-Bossier constitutional purpose standand. 
Section 5(d) indicates that something different from Ashcroft is intended, 
though it may not be clear whether that something is simply the pre-Ashcroft

approach.  Also, whle the focus on whether minority citizens may elect their

preferred candidates is a focus that is relevant to most potential 
objections (those dealing with redistrictings and election method changes), 
it is not really the focus in some (e.g., polling place changes).   I wonder

whether all this ambiguity is thought to serve some purpose or is it just a 
case of too many legislative cooks being involved in preparing this brew?

Lastly, it should be noted that this legislation, if adopted this year, 
would extend Section 5 (and the observer authorization) to 2031, while 
extending Section 203 to 2032.  There wouldn't seem to be any policy reason 
for this, so it must be something that the drafters overlooked.

Mark Posner 


  

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
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
  

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
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