Gans: Some Thoughts, Post-NAMUDNO, Going Forward

Curtis Gans sends along this guest post:

    I have been reluctant to enter the fray with regard to NAMUDNO and the VRA, in part because I’m not a lawyer, and while that hasn’t deterred others, my comments will not have the legal precision of some who have commented here.
    I join with those who have expressed relief that the Court did not decide on the constitutionality of section 5 and those who have expressed concern that with a case of larger moment, the court could well decide at some time in the not distant future to declare the title unconstitutional unless there is some remedial legislative action. The question which has been raised is what that legislative remedy should be. And that, in turn, can only be ascertained by answering a number of questions. To wit:
    1. Is pre-clearance still necessary? The essence of pre-clearance is to put the burden of proof on covered jurisdictions to prove that their current laws and contemplated changes are not in violation of the VRA. It is highly likely that in Deep South states, the high number of elected African-American officials could not have been achieved without pre-clearance and majority-minority districting. And it is likely that without the pre-clearance provisions of the VRA, many of those states would backslide. My rule of thumb with respect to current conditions is any state where Obama handily won a primary (due largely to African-American votes) but convincingly lost the general election (despite heavy African-American voting) is still voting primarily on the basis of race, that African-Americans still could not win statewide elections and, without supervision and threat of federal action, would regress. Those states that fall clearly into this category are South Carolina, Georgia outside of Fulton county and Athens, Alabama with the possible exception of Montgomery, Mississippi with the possible exception of Jackson and Louisiana excepting New Orleans. In those states, section 2 with the burden of proof placed on government to prove denial of voting rights would not suffice.
    2. Is pre-clearance necessary for all the currently covered jurisdictions? The answer is clearly no. Obama won Virginia and the state has elected an African-American governor. There may be pockets of likely voting denial on the basis of race in certain counties in the south and southwest of the state (like Prince Edward County), but the state as a whole has come a long way and is not likely ever to regress. A similar case could be made for Texas both with respect to African-Americans and Latinos. The state as a whole should not be subject to pre-clearance, but jurisdictions within it might. (I don’t know enough to speak to Alaska and Arizona.).
    3. Should the bailout provisions be changed? Given the fact that there are many covered jurisdictions for which pre-clearance coverage is no longer necessary and which might bring court cases similar to NAMUDNO with uncertain results as to the constitutionality of section 5, a very strong argument can be made for Rick H’s pro-active bailout proposal and the summary removal of jurisdictions which should not be covered. The question that hasn’t been answered in this dialogue (or multilogue) as far as I can see is what are the updated benchmarks for both continued coverage and pro-active bailout.
    4. Has the majority-minority district remedy outlived its usefulness? The answer is both no and yes. For the covered Deep South states, I see no other remedy to ensure that African-Americans continue to be elected at least for the foreseeable future. For the rest of the country, this remedy has outlived its usefulness, enhances political polarization and is a major obstacle to a redistricting regime which emphasizes competition and may create a more cooperative politics. Majority-minority districting enjoyed the support not only of minorities and civil rights organizations but also of the Republican Party, the latter because it could lump all minorities into a few districts and make an ever-smaller number of Republican districts competitive. The problem with non-competitive congressional and state legislative districts is that they tend to empower the more extreme as zealous elements of the American polity. The average turnout for a statewide Democratic primary (for governor and U.S. Senate and even adjusted for the competitiveness of the race) is ten percent of the eligible electorate,. For GOP statewide races, it’s eight percent. That means an organized minority representing no more than four percent of the electorate can propel a candidate to primary victory and thus election in one-party districts. And it is the zealous who tend to be those organized minorities. One cannot conceive of expanding the number of competitive districts after the 2010 Census without dealing with the non-southern majority-minority districts and without some leadership from the minority community in understanding that neither their interests or the interests of the country are best served by their continuance.
    5. Should there be a new comprehensive right-to-vote law as a substitute for VRA? The answer for me is there should be a comprehensive law like the one Rick Pildes suggests, but that it should not supersede the VRA. The virtue of the VRA as a separate law is that it is, once changed to provide new criteria for coverage and proactive bailout, an extremely effective well-targeted remedy for a major historical and potential present problem Making that task more complicated by creating an overarching “right to vote” statute probably would weaken the effectiveness of VRA. On the other hand, a comprehensive right to vote law is highly desirable, especially if it includes dispensing with the current list-based, hand-operated, extremely costly, and totally inaccurate and inadequate registration system in favor of one that might be biometrically-based.

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