"The DC Colony"

In his column in The Hill, John Fortier writes: "The recent plan to give D.C. full voting representation in the House of Representatives is much-needed, ingenious and blatantly unconstitutional." The constitutional problem John sees: "But this bill cannot escape the simple language of Article 1, Section 2: 'The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.' Only the people of the states may choose members of Congress, and the District of Columbia is not a state." Meanwhile, Roll Call editorializes in favor of the bill.

VRA Renewal News

Roll Call offers VRA Renewal Runs Into Delay (paid subscription required), which begins: "Although House GOP leaders had aimed to hold a vote on reauthorizing the Voting Rights Act before the Memorial Day recess, objections by members of the Georgia and Texas delegations to portions of the measure now threaten to hold up renewal of the landmark 1965 law." According to the article, the dispute may be over how the bill is brought to the floor. Some members want the bill to be brought to the floor in regular order, which would allow debate and amendments, rather than through the "suspension calendar."

Meanwhile, the Senate Judiciary Committee has this hearing underway on VRA renewal, the last hearing currently up on the committee's calendar. [UPDATE: Maybe there won't be any more Senate hearings. Sen. Leahy's statement today ends: "I do regret that we have given short shrift to extension of Section 203 and the protection of language minorities. I wish we had moved ahead with witnesses on that matter this week and completed it on time. We may wish to supplement the record on that aspect of our bill before the Senate debate."] Here is Nate Persily's prepared testimony. I would be happy to post other testimony from witnesses that is sent to me.

Final Version of My Paper on Election Law and The Roberts Court Now Available

I won't have physical reprints for a few weeks, but you can now download the final version of my article, "No Exit? The Roberts Court and the Future of Election Law," 57 South Carolina Law Review 669 (2006), here at SSRN. Here is how the article concludes:

Making predictions is always dangerous, and the conclusions I reach should be taken in the tentative spirit in which they are made. My best guess is that a decade from now, we may well face a set of election law rules that differ a great deal from today's rules. It may be that in 2016, individuals, corporations, and unions will be free to give as much money as they want to any candidate or group, subject to the filing of disclosure reports. The federal government's ability to protect the voting rights of minority groups that historically have been the victims of state discrimination may be curtailed by the inability of Congress to require any jurisdictions to submit their voting changes for preclearance and by an emasculated reading of Section 2 of the Voting Rights Act. The ability of states to manipulate election rules for partisan gain may present the greatest danger as the Court exits from that corner of the political thicket. For those who look to courts for the promotion of political equality, the signs are not encouraging.

Hasen: Can "Proactive Bailout" Save VRA Renewal from Constitutional Attack?

In my testimony before the Senate Judiciary Committee last week, I made four recommendations to make the VRA more likely to be upheld against a constitutional challenge that it exceeds Congressional power under the 14th and 15th Amendments. These proposals are aimed to make the law more "congruent and proportional" to a history of intentional state discrimination in the covered jurisdictions. Here were those recommendations:

I recognize that this is politically difficult, but Congress should update the coverage formula based on data indicating where intentional state discrimination in voting on the basis of race is now a problem or likely to be one in the near future...

[Second], Congress should take steps to make it easier for covered jurisdictions to bail out from coverage under section 5 upon a showing that the jurisdiction has taken steps to fully enfranchise and include minority voters. The current draft does not touch bail out, and few jurisdictions have bailed out in recent years.

[Third], Congress should impose a shorter time limit, perhaps 7-10 years, for extension. The bill includes a 25 year extension, and the Court may believe it is beyond congruent and proportional to require, for example, the state of South Carolina to preclear every voting change, no matter how minor, through 2031.

[Fourth], Congress should more carefully reverse only certain aspects of Georgia v. Ashcroft. Georgia v. Ashcroft makes it easier for covered jurisdictions to obtain preclearance, meaning that the burden on covered jurisdictions is eased (and therefore the law looks more "congruent and proportional"). Reversing the case as a whole, as this bill apparently could do-though the language in this respect is very poorly drafted-could weaken the constitutional case for the bill. I would suggest tweaking, rather than reversing, the Ashcroft standard.

(On top of these changes to strengthen the bill on constitutional grounds, I also suggested ways to make partisan manipulation of the preclearance decision by DOJ less likely.)

I recognize the uphill battle that getting any change to the bill is going to be, and I think that my first suggestion--tinkering with the coverage formula---is perhaps politically impossible (and that's too bad, because that may be fatal to the Roberts' Court's review) at this point. But I do hope that Congress will focus more on the other issues, especially bailout.

Mike McDonald's excellent contribution to The Future of the Voting Rights Act book shows how rare preclearance has been. He then writes (pdf 33-34): "It is unknown why more covered jurisdictions have not litigated for their release. The reason may lie either with a too difficult bailout mechanism - particularly the proactive steps a jurisdiction must take to improve minority participation - or a lack of information and resources among covered jurisdictions. If the latter were the reason, more jurisdictions could bail out if they were provided with aid in preparing their bailout litigation."

I'd add to Mike's point another one: an unsuccessful attempt at bailout could cause a jurisdiction to be labeled as racist, a risk that does not exist when one simply applies for preclearance and has no objections from DOJ to preclearance.

My proposal for easing bailout would put the onus on DOJ (or some other entity, if we are worried about partisan manipulation of the process) to review each covered jurisdiction's history, and to proactively take steps to inform jurisdictions that have met the requirements that they may bail out. If DOJ will make these decisions administratively, we might allow community members who disagree with a DOJ decision to grant bailout to appeal the decision to a district court.

How does this help with the constitutional problem? The argument would be that the coverage formula, even back in 1965, was not a perfect way of capturing those jurisdictions with a history of discrimination in voting on the basis of race. But it was a good, rough substitute. Today, as well, because section 5 is such a good deterrent, it is hard to come up with a formula to separate out those jurisdictions that still should be covered from those that have made enough progress. The "proactive bailout mechanism" I am suggesting is tailored to the Court's concern of tying remedies to evidence of discrimination. But rather than using coverage as the "opt in," proactive bailout serves for the opt out.

Proactive bailout (especially if coupled with other measures, such as a shortened time frame for renewal) could save the constitutionality of a renewed section 5. The case would be especially strengthened if DOJ could put proactive bailout into effect for some time period before the Supreme Court would hear a challenge to the constitutionality of a renewed section 5. The government could then show it is making a careful attempt to separate out those jurisdictions who still need to be subject to preclearance from other jurisdictions.

"29 Questions for the Senate Judiciary Committee"

The Center for American Progress has posted for "members of the Senate Judiciary Committee the following questions as a guide for their hearings this week."

"DA Elects to Charge School Board Winner"

The Riverside Press Enterprise offers this report, which begins: "After being released four months ago, the Homeland man who won a seat on the Romoland School District board while in prison is back behind bars today. He is charged with perjury, forgery and voter registration violation, all in connection with his run for the board."

"The End of Legal Bribery"

Jeffrey Birnbaum offers this Washington Monthly article considering when is a campaign contribution a bribe in light of the Abramoff scandal. Link via Political Wire.

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