| Subject: Electionlawblog news and commentary 5/11/06 |
| From: Rick Hasen |
| Date: 5/11/2006, 9:22 AM |
| To: election-law |
A.P. offers House Panel Supports Bilingual Voting. Regarding action in the Senate, AP offers Sessions Wants to Extend Voting Rights North. This Washington Times report on the House vote yesterday contains this tidbit of interest to California readers: "Mr. Lungren said his alternative would remove certain California counties that are covered under Section 5 because of the presence of large military installations with large numbers of residents who vote absentee. 'I understand the importance of this bill, but this is a 25-year extension, and I don't think that this is fair to ask them to wait for another 25 years,' said Mr. Lungren, responding to requests from members to withdraw the measure, which he later did. Some members, particularly Rep. Howard L. Berman, California Democrat, were intrigued. He said the proposal 'does not appear to be malicious,' but added that he would need to understand why the covered counties could not opt out under the current provisions."
The San Francisco Chronicle offers this
report, which begins: "Questions about the accuracy of electronic
voting machines have become a dominant issue in the race for California
secretary of state, with the two Democratic challengers for the job
carving out differing positions." The debate comes amid this troubling
report on a new security flaw found wtih Dieblod machines.
Roll Call offers this report (paid subscription required), which begins: "Facing election-year pressure to score a win on the ethics front, House and Senate Republicans signaled Wednesday that they would like to accelerate their long-floundering overhaul of lobbying laws to final passage this month. But that plan faces a major hurdle from Senate Democrats, who are still mulling their options for how best to scuttle the House version’s controversial provision curbing 527 groups." Another snippet: "If Senate Democrats can't get Republicans to agree to knock out the 527 provision, they will have at least three chances to try to stop the lobbying reform bill. They can filibuster the motion to name negotiators; they can filibuster the motion to report the conference agreement back to the floor; or they can filibuster the package itself once it’s on the floor. Sources close to Senate Democrats said they are still considering what, if anything, they should do. Each option carries advantages, but they all share the same risk: that Republicans will be able to label them obstructionists who stopped an ethics overhaul in its tracks to protect a political priority."
In other lobbying reform news, The Hill offers this
report, which begins: "New rules aimed at curbing the growth of
earmarks are among the most widely touted elements of both chambers'
recent lobbying overhaul bills, but a loophole written into the very
definition of 'earmark' could allow more than 40 percent of
member-directed pork to continue unlabeled and unchecked."
George Will writes this
Washington Post column, which begins:
"I work in Washington and I know that money corrupts. And I and a lot of other people were trying to stop that corruption. Obviously, from what we've been seeing lately, we didn't complete the job. But I would rather have a clean government than one where quote First Amendment rights are being respected that has become corrupt. If I had my choice, I'd rather have the clean government."
Jim Bopp tells
BNA (paid subscription required): "We intend to file a prompt
expedited appeal to the U.S. Supreme Court." Bob Bauer reacts
to the court
order denying CCL a preliminary injunction.
I'd first like to thank Professor Hasen for giving me the opportunity to guest-blog on the renewal of the portions of the Voting Rights Act of 1965 (VRA) that expire in 2007. His consistently impressive and tireless work on the Election Law blog was a big part of my inspiration for starting my own Equal Vote blog over two years ago. I'm particularly honored to be participating in a forum that includes such a distinguished group of scholars, from each of whose work I've learned a great deal.
Among the most striking aspects of the discussions of VRA renewal over the past several months is the significant divide that appears to exist between the civil rights and scholarly communities over Section 5 of the VRA. (The language assistance provisions of the VRA contained in Section 203 are also up for renewal, but I'll leave them aside for now.) Section 5 requires certain covered jurisdictions to obtain "preclearance" of electoral changes before they go into effect, from either the U.S. Department of Justice or the U.S. District Court in Washington, DC. Preclearance should be denied if the proposed changes are "retrogressive" -- in a nutshell, if they have the purpose or effect of making racial minorities worse off than they were before.
The divide between civil rights lawyers and election law scholars is evident in Tuesday's testimony before the Senate Judiciary Committee, which Professor Hasen summarized here. Broadly speaking, the civil rights community would preserve Section 5 in its present form, while reversing two decisions that they believe to have weakened the effectiveness of the preclearance process: Georgia v. Ashcroft and Reno v. Bossier Parish II. This would be accomplished by the current version of the bill, and the justification for these changes is ably articulated in the testimony of Laughlin MacDonald of the ACLU and Ted Shaw of the NAACP Legal Defense Fund. Civil rights groups have been reluctant to put other election issues -- such election reforms in areas like provisional voting and voter identification -- into play during the VRA debate.
On the other hand, there is considerable skepticism in among prominent legal scholars over whether Section 5 should be renewed in its present form. Most everyone agrees that Section 5's preclearance requirements have been extraordinarily effective in promoting equality of participation and representation by racial minorities. But a number of commentators, including other guest-bloggers in this forum, have questioned whether Section 5 is well-suited to accomplish these goals in the years to come. Another concern is whether the Supreme Court will uphold the unusual burdens that Section 5 places upon state and local governments, given its "new federalism" cases that sharply limit congressional power to enforce civil rights. These concerns are cogently summarized the testimony of Professor Issacharoff and Professor Hasen. While there is hardly the consensus among legal scholars that exists within the civil rights community, there is considerable sentiment for the view that Section 5 ought to be amended.
What's especially remarkable about this divide is that these civil rights lawyers and legal scholars share most the same ends. Both want to preserve the gains that minority voters have made as a result of Section 5 and other provisions of the VRA. Both want to make sure that the VRA remains effective in stopping new practices that would deny or dilute minority voting strength. And both want to insulate a renewed VRA against constitutional attack, in the near-certain event that Section 5 is reauthorized in some form.
As a legal scholar who was an ACLU lawyer for eight years before entering the academy, I must confess to feeling as though I have a foot in each camp. On one hand, I understand the reluctance of the civil rights community to alter a statute that has, for the most part, served the interests of minority voters extraordinarily well for decades. Without preclearance, there is a real danger that new impediments to equal participation and representation will arise in some parts of the country, especially at the local level. On the other hand, I'm very concerned about whether the preclearance process in its present form will continue to be an effective check on practices that deny or dilute minority votes -- particularly given the increasing evidence of partisanship in the Justice Department, which I've discussed here and here. I'm also worried about whether the current Supreme Court will find a renewed Section 5 to be a "congruent and proportional" remedy for constitutional violations, as the Court's new federalism cases require.
Rather than attempting to resolve this disagreement, it's probably most useful to identify some of the major issues dividing advocates and scholars, along with the major arguments for and against making changes.
The Preclearance Process. Given the dangers of partisan manipulation that exist with the Justice Department's authority to grant or deny preclearance, Congress should seriously consider changes to Section 5's process. I've discussed some of the possible changes here. Among them is one that Professor Gerken has suggested: adopting an "opt-in" approach that would diminish the role of the Justice Department, and replace it with a process designed to encourage negotiation between community groups and covered states and counties. Civil rights groups are worried that they don't have the resources to monitor changes as well as the Justice Department does. As I've discussed in this forthcoming article, I think Professor Gerken's idea is a worthy one, so long as those groups are provided with attorney's fees that they'd need to engage in effective monitoring. I also think Congress should consider creating a new agency for state-level changes, and making decisions to grant preclearance reviewable in federal court.
The Preclearance Standard. Civil rights groups would like to amend Section 5 to reverse the decision in Georgia v. Ashcroft, which upheld a redistricting plan that reduced the number of "safe" minority seats while supposedly creating new minority "influence" districts. Those groups have a point, in noting that the standard for determining when a plan is "retrogressive" is murkier as the result of this case, thus compromising Section 5's administrability. However, as Professor Hasen's testimony points out, reversing Georgia v. Ashcroft entirely would increase the likelihood of the Court throwing out Section 5 on the ground that it isn't "congruent and proportional" to remedying constitutional violations.
Coverage and Bailout. Section 5's geographic scope is limited. It originally targeted southern states, and was subsequently expanded to other places with low registration or turnout and barriers to access. Civil rights advocates point out, correctly in my view, that there are parts of the country -- especially in the South and in Indian country -- where racial minorities are more likely to face barriers to equal representation, especially at the local level. But as Professor Issacharoff's testimony noted, most of Section 5's coverage is based on turnout statistics that are now over four decades old. For this reason, there are strong arguments for revisiting the coverage formula to focus on localities rather than whole states, and for making it easier for covered jurisdictions to "bail out" of coverage. It would also strengthen the case for Section 5's constitutionality, were Congress to take a serious look at the feasability of changing the coverage formula and conditions for bailout.
Beyond Race-Specific Remedies. Some of the most significant voting rights controversies in recent years are not likely to be redressed by a renewed Section 5. Since the 2000 election, the "nuts and bolts" of election administration have attracted unprecedented attention. Professor Pildes thus argues in this forthcoming essay that there are limits to the race-specific approach embodied in Section 5, and that Congress should consider "national, uniform laws to protect the right to vote as such," along the lines of the Help America Vote Act of 2002 (HAVA). But civil rights groups are reluctant to re-open the debate over election reform in the context of VRA renewal. In the current Congress, it's quite possible that introducing these issues could backfire, resulting in laws that actually impede voting rights -- like a more stringent, nationwide photo ID requirement that would have a disparate impact on minority voters. At the same time, Professor Pildes is undoubtedly right that race-specific remedies will probably not be sufficient to protect equal access to the ballot in years to come.
The other participants in this forum will undoubtedly address these and other possible amendments with greater depth and sophistication than I've done here. Each of them raises difficult questions and, as the above comments suggest, my own views are not completely settled. The key point is that Congress should, at the very least, give serious and thoughtful consideration to the above modifications before it renews Section 5. Doing so will not only result in a more efficacious VRA, but will also increase the likelihood of it being upheld in the courts.
- Dan Tokaji
I'm very pleased to announce an all-star lineup of law professors
who will join me as guest bloggers on the topic of Voting Right Act
renewal. Important parts of the Voting Rights Act come up for renewal
in 2007. As Congress considers this important legislation, academics
have already been expressing thoughts in law review articles and books
on the topic of how, if at all, the VRA should be changed. I hope this
blog can serve as a forum to make the exchange of ideas among legal
academics more accessible to Congress and to the larger community of
people interested in this question. The guest bloggers are:
Guy
Charles
Heather
Gerken
Pam Karlan
Nate Persily
Rick
Pildes
Dan
Tokaji
Here
is Sam Issacharoff's testimony. Here
is Theodore Shaw's testimony. (More to come)
A reader emails:
Amends related to sunseting 203, bailing out military base counties, shortening 203 coverage period, prohibiting re redistricting of previously precleared plans as a per se section 2 violation. [Clarification: the re-redistricting and military base amendments were withdrawn, not defeated.]
-- 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