VRA Preclearance (A Response to Pildes/Tokaji, pt. 2)

(At Rick Hasen’s request, I’ve posted (with permission) two listserv responses to this post by Rick Pildes and Dan Tokaji.  The first was from Mike Pitts.  For this one, you can blame me.  The version below is modified a bit from what was sent to the listserv.)

To determine the relative power of the substantive work that section 5 was “actually” doing recently, Rick P. and Dan looked to the numbers of objections and MIRs (both overall and as a percentage of submissions).

In his follow-up post, Mike Pitts points out the variable of partisanship and the way that a shift from mixed partisanship to unitary partisan control might influence the story.

But there’s another aspect to this story as well: what preclearance “actually” did may not be captured well by the total volume of objections, even beyond the effect of a partisan shift.

To make the assertion that section 5 was “really” about redistricting, you need two assumptions.  The first is about statistics.  You’d need to believe that the objections accurately captured what section 5 was “really” doing — and you’d need to set aside the potential for a different mix in the sorts of policies foregone because section 5 acted as a deterrent.  We have objections to measure, so we measure objections.  But we don’t know whether that data accurately represent the whole work of the law.  If each of the covered jurisdictions now followed North Carolina in changing its voter access policies, Rick and Dan’s data about objections wouldn’t change in the least.  But you might well come to a different conclusion about the sort of impact section 5 was “really” having when it was in place.

The second is about scale.  Rick and Dan are absolutely right that the vast majority of the objections (and requests for more information) — by volume — concern redistricting or changes in the method of election (for example, from districts to at-large or vice versa).  But as I’ve written before, about 86% of those objections were located at the county and local level.  And if you peel back the onion a bit more, some of the objections to “statewide” changes were actually state laws that only affected one local area, so the 86% figure actually understates the number of local objections.

Simply tallying the number of objections buries the issue of scale.  Consider Texas.   I count 15 denials of preclearance during the period Rick and Dan identified: 5 changes in individual school districts’ or towns’ method of election, 3 changes to county redistricting, 2 changes to county Spanish-language procedures, 1 change to a community college district’s absentee ballot provisions, 2 statewide redistrictings, 1 statewide change to candidate qualifications for water district supervisor, and 1 change to ID procedures.   By volume, it’s clear that redistricting is the bulk of the work.  But that volume gives the same weight to statewide voter ID rules as it does to a change in a local school district election structure.

Or consider South Carolina, which may make the point even more cleanly.  There were 11 denials of preclearance from 2000-2013: 5 changes in local school districts’ method of election, 1 local annexation, 3 local redistrictings, 1 county redistricting, and 1 statewide ID rule.  In South Carolina, was section 5 “really” about (local) redistricting or “really” about (statewide) access to the ballot?

My answer is “both.”  Changes in statewide voting procedures are important, and local redistricting is important, and I’m not sure that comparing the sheer volume of one to the sheer volume of another tells you much about where section 5 has the most utility.

For what it’s worth, there is much in Rick P. and Dan’s post that is helpful.  I disagree with some of their points (given the history of covered jurisdictions and the availability of bailout, section 5 was never purely about disparate impact alone: there’s good reason to be more suspicious of policies with a disparate impact in Texas than in Wisconsin).  And I heartily agree with others (it is unclear how section 5 “vote denial” claims would be considered by the Supreme Court, there is utility in protecting against access restrictions through means beyond a preclearance model).   I just want to note here that looking purely to the number of objections or MIRs doesn’t necessarily tell you what section 5 was “really” about unless you think that the mix of objections also reflects the mix of foregone changes, and unless you think that all election-related changes, no matter what scale, are equally impactful.

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