VRA Preclearance (A Response to Pildes/Tokaji, pt. 1)

(Re-posted on behalf of Mike Pitts, from a listserv email, with permission, in response to this post):

I have great respect for Dan Tokaji and Rick Pildes.  They are smart folks and excellent scholars.  And they may well be right that Section 5 did not do a wonderful job of protecting access to the ballot for minority voters.  But I am not convinced of that argument by the statistics presented in their blog post.

Dan and Rick make their case that Section 5 did not do much to protect access to the ballot primarily by focusing on statistics involving the Department of Justice’s (DOJ) objections to voting changes from 2000 to 2013.  Using those statistics, they rightly note that (1) the vast majority of DOJs objections during that period did not relate to access issues but instead related to vote dilution issues, such as redistricting plans; and (2) that as a percentage of submissions, objections to access-type changes are much smaller than those related to dilution-type changes.

Leaving aside the hotly contested issue as to whether Section 5 served to deter covered jurisdictions from adopting changes that harmed minority voters in the first instance, Dan and Rick leave unmentioned what may well be the most important reason Section 5 is currently needed (at least at the statewide level) to protect access for minority voters—the shift in the partisan political dynamic in the covered jurisdictions that has occurred between 2000 and now.

The covered jurisdictions have changed enormously since 2000 in terms of the partisan dynamic, going from either solidly Democratic or mixed to solidly Republican.  Take a look at the map at this link from PEW: http://www.pewstates.org/research/data-visualizations/republican-rule-deeper-divides-85899444189.  What you’ll see is that eight of the States that were fully covered by Section 5 (Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas) and one of the State’s that was covered in substantial part by Section 5 (North Carolina) are now strongly Republican—meaning Republicans control all the levers of state government.  While I couldn’t easily locate a map of what the makeup of the States was in 2000, off the top of my head, I recall that Democrats still retained some control in the legislatures of Alabama, Georgia, Louisiana, Mississippi, North Carolina, and Texas; and, in 2000, Alaska and South Carolina had Democratic governors.

As many of the access laws that both Dan and Rick and myself find troublesome originate in States dominated by Republicans, the new, relatively recent, political dynamic of the South would likely enhance the current need for Section 5.  Indeed, the very recent history of Section 5 litigation over access changes by State governments (Texas and South Carolina photo ID; Florida early voting)—where DOJ was successful—would seem to be much more indicative of the importance of Section 5 to access issues than rates of DOJ objections from 2000 to present.

To be sure, Dan and Rick may have made the case that there is no need for Section 5 coverage of access changes on the local level.  In the present day and age, there probably isn’t the need for Section 5 review of every precinct and polling place change in every county, city and school district within the covered jurisdictions.  That’s not to say that there wouldn’t be any problems in this realm, it’s just that the costs might outweigh the benefits of such review.

Dan and Rick may also well be right that a Supreme Court hostile to the Voting Rights Act might have reduced Section 5’s effectiveness in blocking problematic access laws passed by the covered jurisdictions—although somewhat interestingly, in many of the recent Section 5 cases, Republican judicial appointees in the lower courts often embraced the Department of Justice’s arguments.  Even so, at least the “better” status quo would have been retained in the years leading up to these holdings of the Supreme Court.

In sum, while the statistics used by Dan and Rick to make their argument are something worthy of consideration, I don’t think these statistics fairly reflect the whole story about Section 5’s current import to access issues in light of the tremendous partisan realignment that has occurred in the covered jurisdictions over the course of the same exact time period that Dan and Rick focus upon.

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