Persily Article on Renewed VRA Now Available; Ellen Katz and Rick Pildes Comment

Nate's Yale Law Journal article on the renewed VRA is now available. Ellen Katz has written this commentary and Rick Pildes has written this commentary. These are all absolute must-reads. Rick P.'s piece really captures the exasperation I felt at the time of VRA renewal. (For a trip down memory lane, here is a link all the posts in the VRA renewal guest blogging series I had on this blog a few years back.)

"It's Name Is MUD"

Texas Weekly has this article ($) on the NAMDUNO VRA case currently being considered by a three-judge panel, and eventually headed to the Supreme Court. In the article, Edward Blum, the main force behind the suit, says: "'We're not looking to strike down Section 5,' he says. 'We're trying to get the right of sub-jurisdictions to bail out.'"

Another snippet: "Blum points out that states under Section 5 have cleaner election records than states not under the restraints. Hasen, though, sees the fairly good recent track record as possible evidence that current statute is working -- not that Texas can be trusted if freed from Section 5 and left to its own recognizance. 'Part of the reason why Texas may not have had any denials, they've learned what they need to do to get DOJ clearance,' he says. 'If you don't need DOJ clearance anymore, plans might change.'"

"Voting Rights Act provision could face U.S. Supreme Court scrutiny"

The Hill offers this report on the NAMUDNO oral argument. A snippet: "A GOP source close to the reauthorization contended that some Section 5 opponents chose to vote in favor of the bill with the belief that it would be struck down in federal court."

Video and Audio Now Available of AEI Forum on NAMUDNO

See here.

"Officials Challenge Voting Rights Law"

AP offers this report on today's argument in the NAMUDNO case. The lower court panel sounds very likely to reject plaintiff's constitutional attack on the renewed section 5 of the VRA.

For what it is worth, here is what I wrote on Sept. 12, 2006 (almost exactly a year ago), when this three-judge panel was named: 'A three judge court has been named: district judge Paul Friedman, district judge Emmet Sullivan, and DC Circuit judge David Tatel. [note: an earlier version of this post incorrectly referred to Judge Sullivan as being on the DC Circuit] This is likely a good draw for defenders of the constitutionality of section 5. But I don't think the lower court opinion is going to matter very much, however it comes out. This issue---either in this case or one of the others being filed---will be resolved when the Supreme Court resolves it."

NAMUDNO Reply Brief Filed by Plaintiffs

You can find it here. If I get links to the other briefs, I'll update this post with those links. UPDATE Defendant-Intervenors' Opposition to Plaintiffs' Summary Judgment motion is here.

Tucker on VRA Renewal

James Thomas Tucker has written The Politics of Persuasion: Passage of the Voting Rights Act Reauthorization of 2006. This article was originally printed in the Notre Dame Journal of Legislation, 33 N.D. J.Legis. 205 (2007), and is reposted here with the permission of the author and the journal.

Persily on "The Promises and Pitfalls of the New Voting Rights Act"

Nate Persily's must-read article on VRA renewal (forthcoming Yale L.J. October 2007) is now posted here on SSRN. Here is the abstract:

This article, forthcoming in the Yale Law Journal, describes the legislative history surrounding the 2006 reauthorization of the Voting Rights Act and provides an interpretation of its key provision. The legislative process was unprecedented in many respects. Despite unanimous support for the law in the Senate Judiciary Committee and on the Senate floor, the Committee Report was submitted after passage of the legislation with only Republican signatures and with all Committee Democrats dissenting. The legislative history suggests the political parties' differing interpretations of the Act that only came to light once the President had signed the bill into law. This article concludes with an evaluation of potential interpretations of the new retrogression standard: that covered jurisdictions may not diminish the ability of minorities to elect their preferred candidates of choice.

Edward Blum on the Renewed Section 5 and the Aschoft "Fix"

See here at AEI. A snippet: "So, armed with the Ashcroft fix, how much damage could a Democratic controlled Justice Department do to Republican hopes after the next census? Quite a bit it turns out. Today there are 102 congressional districts in the states wholly covered by Section 5: Republicans hold 61 of these seats, while Democrats hold 41. After the 2010 Census, those same states may be apportioned another seven or eight districts because of population growth. If applied by an aggressively partisan attorney general, the Ashcroft fix could shift nearly 10 of these seats to the Democrats. Since the country is so evenly split between the two parties, that may be enough to keep the GOP out of the majority for a decade (especially since it is losing support in the Mid-Atlantic, Midwestern, and Western states)." Nate Persily, what do you think?

More Summary Judgment Motions in NAMUDNO

Following up on this post, here are more pleadings in NAMUDNO, the case raising the question of the constitutionality of the renewed section 5 of the VRA.

DOJ

Travis County

I received a copy of the MALDEF brief, but it is too large for me to post. If I can find it posted elsewhere, I'll link.

Pleadings Begin to Get Filed in NAMUDNO Case, Challenging Constitutionality of Section 5 of the Voting Rights Act

You can find the brief of Public Citizen, Texas RioGrande Legal Aid, NAACP's Austin and Texas branches, NAACP-Legal Defense Fund, Lawyers' Committee for Civil Rights Under Law, American Civil Liberties Union, and
People for the American Way here.

You can find the Brennan Center's amicus brief here.

MALDEF filed a brief as well that I have not seen. Trvais County also filed a brief.

If anyone has links to the government's brief or to any other briefs, please send them along. You can find extensive coverage and analysis of the constitutional issues from a number of election law scholats at this link.

UPDATE: The plaintiffs' motion for summary judgment is here.

Oral Argument in Federal District Court in NAMUDNO Case Set for September 17

According to PACER: "Oral argument on dispositive motions is set for September 17, 2007 at 10:00 a.m. in the Ceremonial Courtroom, Courtroom #20. Signed by Three Judge Panel (Judge David S. Tatel, Judge Paul L. Friedman, and Judge Emmet G. Sullivan) on February 5, 2007."

In Section 2 Vote Dilution Case in Indian Country, Fremont County, Wy. Lawyer Argues Section 2 is Unconstitutional

This is very interesting and the kind of thing I feared when Congress renewed section 5 without making changes to the preclearance formula or bailout. An adverse opinion in NAMUDNO could open the door to new constitutional attacks on other civil rights statutes, including section 2 of the VRA.

Legal Times on NAMUDNO Litigation Challenging the Constitutionality of Section 5 of the Voting Rights Act

The must read article is available here without a subscription.

Hasen: On VRA Renewal, what if the Civil Rights Community Knew Democrats Would Take Back Congress?

As I noted back in June, those in the civil rights community pushed for a certain package of Voting Rights Act renewal amendments quickly because they feared that whichever Republican Member of Congress would take over for the current House Judiciary Committee chair, Rep. James Sensenbrenner, might be less willing to push for a strong VRA renewal. I don't think it appeared likely to anyone at the time that the Democrats would soon control both branches of Congress and that John Conyers would chair the House Judiciary Committee (with Patrick Leahy, another strong supporter of the VRA, chairing the Senate Judiciary Committee).

How might that have changed what appeared in the renewed VRA? We'll never know. Of course, to the extent that the civil rights community got a more moderate bill than they would have with Democrats in charge, it might be that the moderation is what saves the amendments from being struck down as unconstitutional. We'll know the answer to this latter question as NAMUDNO works its way to the Supreme Court.

NAACP LDF Seeks to Intervene in NAMUDNO to Defend Constitutionality of VRA

See this press release.

Government Files Answer in NAMUDNO Case Defending Constitutionality of the Renewed Section 5 of the Voting Rights Act

I have posted the answer here.

Overton (VRA Renewal): The Conflict Between Scholars and Policymakers

Now that U.S. House and Senate have both voted to renew provisions of the Voting Rights Act, I would like to comment on the nature of our debate.

On one hand, I've read thoughtful writing about the coverage formula, bailout, and federalism generally from people like Rick Hasen, Pam Karlan, Nate Persily, and Rick Pildes. While I may not agree with them on everything, I've learned a lot from these and other scholars.

On the other hand, the discussion on the election law listserve has sometimes been condescending of members and staffers on the Hill. As academics we sometimes make judgments without having reviewed the complete legislative record ourselves. Not only do we make substantive claims, but we sometimes criticize activists on the style of the debate--as though politics on the Hill should conform to the standard of fairness, decorum, and civility that we expect from our students in the classroom.

My point is not that academics should avoid meaningful conversation about the Voting Rights Act. Instead, I think we should recognize our own limitations as academics and appreciate that there are political elements to both congressional passage and judicial review, and that others may have more expertise in these areas than we do (actually, more of a "different" type of expertise that may be relevant to these contexts). When I sat on the Carter-Baker Commission on Federal Election Reform, for example, I started with an open mind expecting a fair process based on expert testimony and facts--but a political undercurrent existed that I did not appreciate until the end of the process (most of the other commissioners were politicians and "got" the political element all along).

Previous blog entries have acknowledged that some members of Congress critical of the Voting Rights Act may not be acting in "good faith," but I think the challenge for the academic is to take the next step and figure out how to engage in a fair and honest way without becoming a tool for those who are not acting in good faith. I don't have any simple answers or guidelines, but I think that humility, appreciation of other perspectives, and awareness of both what we add to the debate and the limitations of our talents are important.

I don't mean to dodge the substantive questions. I explain my own take in my chapter "The Coverage Curve: Identifying States at the Bottom of the Class" in the forthcoming book "The Future of the Voting Rights Act" (Epstein, Pildes, de la Garza and O'Halloran, eds., Russell Sage Foundation, forthcoming 2006). A shorter 8-page version is in my new book Stealing Democracy: The New Politics of Voter Suppression, pp. 112-120.

To me, many criticisms of the Section 5 preclearance process--such as the assertion that it is too "intrusive," "excessive," or "extraordinary"--seem overstated. Preclearance is much less burdensome than litigation, as it enjoys the advantages of ex ante over ex post decisionmaking. Employing a few paralegals at the federal and state levels to identify and prevent problems over a 60-day period is more efficient and inexpensive than the teams of lawyers, years of interrogatories and depositions, legions of experts, and judicial resources that accompany litigation. Similar preventative procedures deter misconduct and reduce litigation costs in other areas of the law, like the Hart-Scott-Rodino antitrust review process and environmental impact statements. While litigation remains essential to resolve some voting rights matters, there is no reason that voting rights law must be relegated to litigation as its sole enforcement tool.

Further, technology has made the preclearance process even less intrusive than it was in 1982 when Congress last renewed the relevant portions of the Voting Rights Act. Modern software that can be used on a desktop personal computer makes compliance with Section 5 easier than ever. Most jurisdictions already own such software--they buy it to comply with one person/one vote requirements. Compliance with Section 5 that 25 years ago demanded weeks of tedious trial and error now requires a few hours.

Some have claimed that the record of discrimination is not sufficiently weighty. But what is the baseline that justifies immunity from preclearance coverage? Is it refraining from spraying voters of color with hoses and tear gas? Certainly, today's South is more "attuned to black political claims" than it was in the 1960s, but problems still exist in Arizona, Virginia, Mississippi, Louisiana and other parts of the nation that might go unresolved for years absent voting rights protections. Using a 1960s standard of race relations as a baseline for coverage could also encourage some to hype stories about racist conspiracies. As the U.S. Senate Report on the Voting Rights Act Amendments in 1982 explained, requiring that we label "individual officials or entire communities" as racist is "divisive, threatening to destroy any existing racial progress in a community."

There is no uncontested baseline that clearly separates intolerable racial dysfunction that warrants federal preclearance procedures from improper but tolerable dysfunction that does not justify congressional intervention. Any judicial proclamation that purports to draw such a line is based on nothing other than value judgments that creep dangerously into the political thicket. Does Congress need testimony on 2 or 200 instances of "discrimination" to warrant preclearance coverage in a particular jurisdiction? Must such instances involve intentional discrimination, or will discriminatory impact do? If intent is a requirement, must the evidence establish "Bull Connor" racial animus, or can it simply show that a political operative intentionally excluded voters of colors because he believed those voters were prone to cast ballots against the political operative's favored candidate?

Despite the fact that no objective baseline exists, I do agree that the question of which jurisdictions must comply with the process merits serious consideration. In light of this, in my "Future of the Voting Rights" chapter I attempt to identify symptoms of racial dysfunction in a political process and measure which jurisdictions present such symptoms to a greater extent than others. I use factors like the number of Section 5 objections, Section 2 claims, deployment of federal observers, racial disparities in voter turnout, amount of political party competition for voters of color, racial disparities between voters and elected officials, and size of minority group and low-English proficiency populations.

The data show that several fully or partially covered states remain at the "bottom of the curve," including states with House members who voted against renewal like Alabama, Arizona, California, Georgia, Louisiana, South Carolina, and Texas.

--Spencer Overton

VRA to Senate Floor with No Amendments?

As I've noted, tomorrow is the day the Senate Judiciary Committee was supposed to markup the VRA renewal provision. It was unclear, as of this morning, whether or not some members of the committee (especially Sens. Cornyn, Coburn, and Sessions) might offer some amendments or otherwise slow down the bill. Yet according to today's CQ Mid-day report, thing have changed dramatically. "... Specter, who was already planning to begin a committee markup of the bill tomorrow, now plans to complete work then so the full Senate can take up the bill Thursday with the goal of passing it this week." If it is going to get done tomorrow, it sounds like there won't be any serious amending of the bill.

What has happened? Has the Republican leadership convinced those Senators who had raised concerns about aspects of the bill that it is politically expedient to pass the bill now and get the issue behind them? (Perhaps there has been some negative fallout from last week's house debate). Perhaps not coincidentally, this story appeared in today's NY Times on GOP-African American relations faltering, and the possibility that President Bush will speak, for the first time as President, before the NAACP convention. He certainly will get a warmer welcome if he can do that with VRA renewal passed or assured.

UPDATE: President Bush has agreed to speak to the NAACP on Thursday, which could explain the timing.

Witnesses Announced for Tomorrow's Senate Judiciary Committee Hearing on VRA Renewal and LULAC Case

Expect fireworks.

Breaking News: House Rules Committee Issues Rule on VRA Debate in House

You can find it here. There will be four amendments offered:

1. Norwood (GA) #8:
Updates the formula in section 4 of the Voting Rights Act (VRA) that determines which states and jurisdictions will be covered under Section 5 of the VRA. This updated formula would be a rolling test based off of the last three presidential elections. Any state would be subject to Section 5 if it currently has a discriminatory test in place or voter turnout of less than 50% in any of the three most recent presidential elections. (40 minutes)

2. Gohmert (TX) #14
Makes the reauthorization period 10 years, rather than the 25 years proposed in H.R. 9. (40 minutes)

3. King, Steve (IA)/Istook (OK)/Miller, Candice (MI)/Brown-Waite (FL)/Bachus (AL) #7:
Strikes sections 7 and 8 of the bill. These sections relate to multilingual ballots and use of American Community Survey census data, and they would automatically expire in 2007. (40 minutes)

4. Westmoreland (GA) #4:
Provides for an expedited, proactive procedure to bail out from coverage under the preclearance portions of the Voting Rights Act, by requiring the Department of Justice to assemble a list of all jurisdictions eligible for bailout and to notify the jurisdictions. The Department of Justice is then required to consent to the entry of a declaratory judgment allowing bailout if a jurisdiction appears on the list. Adds a three-year initial time period (and annually thereafter) for assembly of the bailout list by the Department of Justice. (40 minutes)

It should be an interesting debate.

More on VRA Renewal in the House

This morning, a group of Republican election lawyers met with the Republican conference in the House, apparently to get everyone's ducks in a row before the scheduled vote on the VRA on Thursday. But it appears things did not go as planned, and the vote may be postponed yet again (alternatively, I hear rumors of allowing more amendments than the two amendments which would have been allowed under the old rule).

According to the CQ Midday Update:

House action on a bill to renew expiring portions of the Voting Rights Act is scheduled for Thursday, but the bill may yet be pulled because disagreements persist about some of its language.

House Majority Leader John A. Boehner, R-Ohio, said, "I want this bill finished this week. But to tell you everything is settled and everyone is happy would not be the truth."

Boehner appeared discouraged after a two-hour meeting where, he said, there was "complete disagreement" among lawyers brought in to explain the effect of a provision in the bill that addresses a 2003 Supreme Court decision in Georgia v. Ashcroft that involved districts drawn to increase minority representation in so-called minority-majority districts.

"Members know there is very big disagreement among the lawyers over the language," Boehner said. "How much progress have we made? Some."

The bill was originally expected on the floor prior to the July Fourth recess but ran into trouble among Republican conservatives.

In the meantime, Bob Bauer has written against the bailout amendment that I support. I don't find Bob's arguments persuasive, in large part because he does not address the substantive merits of the proposal. (He is more concerned about the politics of it all: "The time to vote, however, has come, and what is before the Congress is superior to a last-minute, highly politicized and scattershot amendment process justified by the Congressional sponsors as an answer to constitutional concerns of entirely speculative character.")

Hasen: "Pass the VRA Bailout Amendment"

Roll Call has published my guest commentary (FREE access, reprinted with permission), which begins:

This week the House considers H.R. 9, a bill that renews expiring provisions of the Voting Rights Act. The Senate is expected to take up parallel legislation later this summer, after it emerges from the Senate Judiciary Committee. Members of the House should vote to renew the act, but they also should vote for an amendment to be offered by Rep. Lynn Westmoreland (R-Ga.) to create what I have termed "proactive bailout." The amendment strengthens the act by helping to insulate the renewed VRA against inevitable constitutional challenge.

It concludes:

This proposal does not gut the VRA, as some have suggested. It simply provides a way of ensuring that those jurisdictions that remain covered by Section 5 are the ones where there is still a danger of racial discrimination by the government in voting. That assurance could convince more conservative justices, particularly Kennedy, who could well be the swing vote on the constitutionality of VRA renewal, that Congress has made efforts to make sure that the law does not exceed Congressional power.

I know some Members of Congress, particularly Democrats, might be suspicious of an amendment offered by a conservative Southern Republican such as Westmoreland. I understand the concern. But Members of Congress should look past this concern. Passing H.R. 9 as is, without any attempt by Congress to recognize that 2006 is not 1965, could doom the provisions before the Supreme Court. And if the court strikes down a renewed VRA, other important civil rights laws could follow as well.

Meanwhile, the newspaper reports (paid subscription required): "Leadership sources said they expect those two amendments [Norwood and Westmoreland] again will be made in order when the Rules Committee meets this week to reconsider the VRA. Those sources also predicted both amendments would fail -- a development that should ensure that the VRA retains the support of Democrats, including members of the Congressional Black Caucus."

What I Hear About VRA Renewal

I have heard (unconfirmed) that the Senate markup of the VRA bill is coming in mid-July. Sen. Specter is hoping to have the bill on the floor in the second half of July. The House timing remains a question.

House Rules Committee Tables Rule on VRA Renewal, Meaning the Rule for Debating (and Possibly Amending) H.R. 9 Will Have to Be Renegotiated

Last night the Rules Committee voted to table H. Res. 878, which had provided for the rule on debate of VRA renewal (that's the deal that allowed two proposed amendments, the Norwood amendment and the Westmoreland amendment). It appears then that the details of the VRA renewal debate will have to be renegotiated, and that's likely not to happen until after the July 4 recess.

"GOP splits but Dem deal on VRA holds"

The Hill offers this must-read report on VRA renewal, which states that "Democrats and civil-rights leaders compromised on measures regarding voter protection, including those to curb the use of photo-ID laws, to ensure that a bill would be passed before the bill sponsor, committee Chairman James Sensenbrenner (R-Wis.), gives up his gavel at the end of the legislative session, according to several Democratic sources in the House, including multiple committee staffers. Democrats are concerned about the possibility of Rep. Lamar Smith (R-Texas) as the next committee chairman and the prospect of a significantly weakened Voting Rights Act under his chairmanship."

Another snippet:

In an e-mailed response to The Hill yesterday, Smith said that he would support two amendments offered by Reps. Lynn Westmoreland (R-Ga.) and Charlie Norwood (R-Ga.) that would significantly modify Section 5. The Norwood amendment would modify the formula for pre-clearance scrutiny, opening up Justice Department oversight to all 50 states. Democrats and civil-rights groups have said such a proposal could only be intended to kill the Voting Rights Act. The House Rules Committee last week cleared both amendments for floor votes.

I don't think the article accurately summarized what the Norwood amendment would do, but it is quite significant that Rep. Smith says he supports it. As I've said, the Norwood amendment is not a serious measure, but one designed to scuttle the entire section 5 apparatus. The Westmoreland amendment, on the other hand, is (at least in theory, if not in how it is actually drafted) a proposal that could help insure the constitutionality of a renewed section 5 without unduly weakening it.

Pitts: Vermont Is Not A Covered Jurisdiction, But...

Obviously, there is no explicit connection between today's Supreme Court decision involving Vermont's campaign finance laws and the extension of the special provisions of the Voting Rights Act. But there might be a subtle connection if you read between the lines, for the Vermont decision might provide a helpful clue about the views regarding the constitutionality of Section 5 of a Justice who did not actually pen one of the six separate opinions in today's case--Chief Justice Roberts.

Today's decision in Vermont provides evidence that the Chief meant what he said when he indicated during his confirmation hearings that he would have great respect for the Court's well-established precedents. Notice that the Chief joined Justice Breyer's discussion of stare decisis, whereas the other recent addition to the Court, Justice Alito, used a concurrence to specifically divorce himself from that portion of Breyer's opinion. Of course, one should be careful not to read too much into this, but what it could portend for Section 5 is that arguments from precedent using South Carolina v. Katzenbach and City of Rome will generate traction with the Chief.

I think this is important because (assuming no changes in the composition of the Court) the fifth vote for the constitutionality of Section 5 will likely have to come from Chief Justice Roberts. Although Justice Kennedy has now seemingly replaced Justice O'Connor as the new swing vote on the Court, I don't think Justice Kennedy will be the swing vote on the constitutionality of Section 5. Justice Kennedy's previous decisions place him fairly solidly against race-based remedies and fairly solidly against giving broad authority to Congress in the use of its enforcement power. True, he could moderate his views on these subjects and he may yet find a race-based remedy and use of the congressional enforcement power (outside of the Goodman context) that he does not oppose. It's just to say I think it is unlikely Justice Kennedy will change his tune. That means those who wish to uphold the constitutionality of Section 5 will have to sing "Hail to the Chief."

--Mike Pitts

Issacharoff: On the Constitutionality of VRA Renewal

The discussion of the constitutionality of the proposed extension of the Voting Rights Act has a disquieting tone to it. I am not sure what purpose is served by advocates of extension saying categorically that the bill would be found constitutional and opponents saying it would not be. There may be a satisfying "Mom and Apple Pie" high ground in being able to wrap an argument in the fabric of putative constitutional discourse, but I am not sure what is gained by it.

Any serious discussion of the constitutionality of the bill has to proceed along at least three tracks, each of which introduces huge amounts of uncertainty. The first is what level of scrutiny applies to legislation clearly within the core enforcement concerns of the Reconstruction amendments. Is the Court likely to see this as an extension of City of Boerne or will it apply the laxer standard of review of Hibbs? Will the Court be inclined, if faced with a 25-year extension, to continue the deferential treatment of the Voting Rights Act offered up most recently in Lopez v. Monterey County? My hunch is that the standard of review will be more exacting than Hibbs, but less than Boerne. That is, I think the Court is likely to have far greater reluctance to strike down core enforcement statutes dealing with race than it would be with the further reaches of congressional power. But I acknowledge this is a hunch based on wildly incomplete data and a small and internally inconsistent body of decided cases. I find it bizarre that anyone would speak with certainty about the constitutionality or unconstitutionality of the Act without even a clear sense of what the standard of review might be. In fact, I am more inclined to view these arguments as unenlightening advocacy dressed up as constitutional analysis.

The second issue is the state of the record for the Act's renewal. Here I think that lawyers and law professors have something interesting to say. There are serious debates about what the record shows, about what the absence of objection shows about the continued need for the Act or about its ongoing deterrent effects, about the relation between the regulatory design for addressing vote exclusion and its current application primarily to vote dilution, and so forth. These are important issues about the state of voting rights in the U.S. They force a reexamination of the extent to which a model of racial exclusion continues to define the central defects in American elections, and the extent to which, per the Georgia v. Ashcroft discussions, the mechanical applications of this model may produce paradoxical effects. Despite the initial forced march efforts for renewal in the House, I have found the debates occasioned by the Senate hearings to be fascinating. Even after many years in the field, there is much to be learned in these exchanges. But here again, a candid assessment of the record begins with the acknowledgment of how dramatically altered the voting rights terrain is today as opposed to 1965 or 1982. Much of the debate is about what to conclude form the basic absence of a record of willful exclusion of the sort that could easily be marshaled in 1965 and even 1982. The difficulty of working with this kind of record is yet another source of constitutional uncertainty.

Finally, there are the political or temperamental impulses of the Court. This is a Court with new members that has not yet engaged congressional action at the core of the 14th and 15th amendments. Is this a Court still chastened by Bush v. Gore, as Dave Cole argues? Or is this a Court that will direct itself to the boundaries of congressional power as such, and perhaps one less concerned with the marginalia of the 11th amendment? Would this Court come out the same way in Gonzalez v. Raich, for example? Much may turn on the political and institutional identity assumed by this reconstituted Court. Again, I find it hard to take seriously that anyone would speak with certainty about the constitutionality of a renewed Act in the face of this factor being as yet uncertain. Others may think this issue is already conclusively resolved. But if it is not, the claim of constitutional certainty rings hollow.

--Sam Issacharoff

"ACLU Challenges Lawmakers Who Aim to Gut Voting Rights Act, Says Proposals Would Eliminate Historic Federal Protection"

The ACLU has issued this press release, which links to this letter. I completely agree with the letter's opposition to the ridiculous proposal offered by Rep. Norwood to change the section 5 trigger to a formula that would include only Hawaii. But I don't agree with that the letter says about the proposed bailout amendment:

Furthermore, the bailout provision of the VRA works to ensure that the scope of Section 5 is not overbroad or otherwise constitutionally flawed. Congress designed the bailout formula to allow a jurisdiction that could demonstrate it had taken sufficient steps to remove bars to minority enfranchisement to be released from preclearance. All jurisdictions that have attempted to bail-out from coverage have been able to do so successfully. If, however, Section 5 or the bailout provision were to be weakened, then formerly covered jurisdictions will have escaped the need to make a showing of real progress in enfranchising their minority voters.

First, the fact is that very few jurisdictions have attempted to bail out (and those that have done so have small minority populations), and many apparently have been deterred for reasons Rick Pildes recently noted. Second, I don't see how "proactive bailout" would allow former covered jurisdictions to "escape[] the need to make a showing of real progress in enfranchising their minority voters." The DOJ would have to be satisfied that the jurisdiction has done so, and for practical purposes it won't be able to bail out without providing DOJ with information showing such progress. Moreover, if DOJ colluded and consented to bailout, the law would still allow intervenors to object to show that not enough progress has been made.

Hasen: More On VRA Compromise

I have received some private reactions to my call for compromise, some of it positive, some of it suggesting that I am emboldening opponents of the Act to stall further. Bob Bauer has posted these comments challenging the sincerity of Republican House members who have stalled VRA renewal, pointing to their support for discriminatory voter i.d. laws in Georgia.

I am certainly not intending to embolden opponents of the Act to stall the Act's passage. I would prefer by many magnitudes that H.R. 9 be adopted in its current form rather than have no adoption at all. But, as I've said before, I view the legislation as in serious danger of constitutional invalidation by the Supreme Court. Adopting proactive bailout could go a long way toward satisfying those concerns. While some have said I'm being "used" by opponents of the act to help them ultimately scuttle the Act, my calculation is different. It would be very hard for the Republican leadership not to renew the Act this term, leaving it as a campaign issue in the fall. But these opponents provide the opening for a compromise that can improve the act.

Expiring provisions of the VRA should be renewed, and renewed this session of Congress. But they should be improved before they are renewed. We'll see if the opponents are sincere in their hopes for compromise if they drop their proposal to change the trigger to 2004 and start suggesting more realistic and useful alternatives.

(By the way, though I support voter i.d. laws as part of a package of universal voter registration conducted by the government, I view both the earlier and current Georgia voter id laws as unconstitutional, a violation of section 2 of the voting rights act and a change that should not have been precleared under section 5 of the Act.)

UPDATE: Mark Posner writes:

The following is my three-step prescription for Section 5 sanity and survival:

First, I agree that there are good reasons for ramping down the current reauthorization proposal. Doing so will strengthen the case for its constitutionality, is responsive as a matter of policy to the fact that minority voters in the covered areas are in a much stronger position today than in 1982, and might peel off some of the current Republican naysayers (because they will view the legislation differently on substantive grounds and/or because the ramp-down will give them cover for changing their minds in response to political pressure).

Second, I don't agree that the ramp-down should include any proactive bailout provision. I think that any proposal to have DOJ compile a list of jurisdictions eligible to bail out is impractical and also is not justified as a matter of policy. My practicality concern is based on the large number of "political subdivisions" that DOJ would need to survey (over 900) and the nature of the information that it would need to obtain (in particular, the Section 4(a)(1)(F) information). While having the 900 plus jurisdictions write in to DOJ with bail-out information would help, DOJ still would need to conduct 900 plus investigations to verify the letter claims. With regard to policy, I don't think that the case has been made that these jurisdictions should have DOJ carry them through the bail-out door. That door is open, and though we all have thought of many reasons why more jurisdictions have not sought to pass through it, the bottom line is they have sat on their collective hands. With some effort and some payment of attorneys fees, I think that many, many jurisdictions could bail out under the current system.

Third, I agree that the most direct and simplest way to ramp down the reauthorization is to reduce the renewal period. As Rick suggested, a period of ten to fifteen years sounds good. Another thing that could be done (which seems to have my vote but no one else's) would be to cut out from coverage some of the types of voting changes that now produce big submission numbers but very, very few objections (e.g., polling place and precinct changes, and special elections). But perhaps this is not politically doable because of a slippery slope concern.

Hasen: VRA Renewal: The Spirit of Compromise?

Yesterday I suggested that the civil rights community should be ready to compromise on some aspects of VRA renewal in order to get a bill passed this session. In this post, I want to suggest that if those members in the House who are holding up renewal are doing so because they really want a "modernized" bill that can pass constitutional muster (as opposed to simply trying to stall the bill in the hopes that section 5 won't get renewed), they should be willing to compromise too.

What might the form of compromise look like? Recall there were two amendments being allowed by the Rules Committee. One would change the trigger and the other would enact the proactive bailout proposal similar to the one I've been advocating.

The trigger formula is not a serious proposal. It would apparently end preclearance for every state, except Hawaii, which would be the sole covered jurisdiction. In the spirit of compromise, members should drop this amendment. A serious compromise could begin with H.R. 9 and make the following changes:

1. proactive bailout (with the modifications I discussed this morning)
2. a shorter time period (say 10 to 15 years)
3. raising the population threshold for section 203 by 5%

There are other ways to compromise. But something on the table like this would be a good deal for both sides, assuming the sincerity of all parties involved.

Hasen: Two Ways to Improve Proactive Bailout

From discussions with a number of people, both on and off the election law listserv (see especially here), I would now suggest amending my earlier proactive bailout proposal in two ways:

1. The DOJ should be able to request that covered jurisdictions compile information and submit the information to assist with the task of figuring out which jurisdictions should be entitled to bailout.

2. Given the large number of jurisdictions, DOJ should have three years to prepare its initial list of jurisdictions entitled to bail out, prioritizing by beginning with those jurisdictions most likely to bail out (and producing an interim list at the end of each of the three years). After the three year period, DOJ would produce an annual updated list.

Hasen: The Civil Rights Community's Double Gamble on VRA Renewal

Those members of the civil rights community who have been leading the push for VRA renewal made a decision some time ago (or at least it appears to an outside observer) to push for VRA renewal (1) as quickly as possible and (2) in substantially the same form as the current Act or, if anything, to roll back some Supreme Court precedents seen as limiting the power of the VRA to help minority voters.

The first calculation seemed geared in great part to the fact that the current chair of the House Judiciary Committee, Rep. James Sensenbrenner, agreed to fully support the bill drafted by the civil rights community. It also appeared that the House Republican leadership was also willing to push the measure through quickly this year. (We can debate why the House Republicans wanted to do this: maybe out of principle; maybe out of political expediency (it would not look good to be opposing landmark civil rights legislation), maybe for political gain (some believe that section 5, and perhaps also the Georgia v. Aschroft fix, would help Republicans create packed majority-minority districts which can maximize the number of white Republican districts overall).) Next year, Sensenbrenner will be out as chair, and what happens after the midterm elections is anyone's guess. For this reason, it probably made sense for the push to have renewal done now, which is why some in the civil rights community were very upset when the Senate Judiciary Committee seemed intent on moving more slowly on renewal.

It is the second calculation that may turn out to have been an error. As I noted earlier today (see also this NY Times report, this Washington Post report, this report in The Hill, this Roll Call report and this Wall Street Journal editorial), the bill is now on hold for the indefinite future, prompted by a rebellion among some House Republicans (especially from covered jurisdictions) who believe the bill is unfair. The reaction of these House members should not have been that much of a surprise. The bill would impose preclearance for another 25 years. It did not acknowledge that the state of minority voting rights in 2006 is not the same as the state of such rights in 1982 or in 1965. (That's not to say that VRA renewal is not necessary. I believe it is very necessary, and I support a renewed section 5.) But the attitude of those pushing the bill has been to try to avoid presenting dissenting views and to act as though 2007 and 1982 are the same.

Of course, the attempt to move the trigger for preclearance to the 2004 elections (as has been proposed by some House Republicans) is an awful proposal. It is one that would doom the measure's constitutionality, absent any evidence that these turnout figures today would do a good job capturing states with a real potential for racial discrimination in voting. That amendment was offered to make a political point. But other amendments, such as the proactive bailout proposal, should be debated seriously. There should also be room for compromises on issues such as the number of years of renewal.

Rather than presenting a bill that was sure to cause the anger of Southern Republicans, a smarter strategy might have been to offer some compromises. This was the gamble that may have been in error.

On the other hand, this delay could have some short term benefit for Democrats. Headlines such as Republicans cancel renewal of Voting Rights Act, for now can help Democrats win votes in November. Maybe the delay will hurt the Republicans after all.

But the wise move now for VRA renewal supporters would be to look for common ground and places for compromise, to avoid the possibility of the issue being put over post-midterm elections, and after Rep. Sensenbrenner has left his important committee role.

"Bailouts and the Voting Rights Act: Observations About Rick Hasen's Proposals"

Gerry Hebert offers these interesting observations on the proactive bailout proposal.
UPDATE: Luke Peterson emails:

When it comes to the bailout provision of the VRA, it is hard to argue with Gerry Hebert. I would like to add one point to Hebert's counter-arguments to Hasen's proactive bailout proposal, and then add a significant addition to Hebert's proposal.

First, it should be remembered that prior to the 1965 VRA, the DOJ faced the impossible burden of investigating and litigating for injunctive action against discriminatory devices, policies, and practices. The task proved too great a burden for the DOJ's limited resources. Precisely for this reason was Section 4 included in the Voting Rights Act. In 1982, Rep. Hyde's H.R. 3198 & 3473 introduced the notion of a bailout with set criteria that would allow a covered jurisdiction to bailout at any time if it met the criteria; thus providing an incentive to jurisdictions to seek full compliance with the VRA. Hyde's proposal would also have eliminated the coverage mechanism and preclearance requirements for all jurisdictions except those that would be covered by the language minority provision. The House Judiciary committee accepted (though in a dramatically altered form) Hyde's argument that an attainable bailout should be provided in the Act. They roundly rejected, however, the notion that the coverage formula be virtually eliminated because it would be a return to the "pre-1965 litigative approach" that proved impossible for the DOJ.

I believe that the proactive bailout would place a similar burden on the DOJ as was felt under the "pre-1965 litigative approach." I believe the task of determining who may qualify for a bailout may prove as onerous as the pre-1965 task of determining who was violating the previous voting rights acts.

What is needed then is a proposal that provides better incentive to jurisdictions to seek bailout, while not placing an excessive burden on the DOJ.

I agree with Hebert's proposal, but would risk going one step further. I propose that the preclearance provision be eliminated and replaced with a quarterly report to the DOJ. Jurisdictions would not be required to preclear changes, only to report them, while the DOJ would retain the right to investigate and overturn voting changes which it determines to be discriminatory. In this report covered jurisdictions would be required detail all voting changes, the rationale behind them, and a detailed report on the jurisdiction's progress toward the bailout criteria as currently constituted.

There would be a number of advantages to such a system. First, while a quarterly report on all voting changes would be at least as burdensome as preclearance of all changes, because none of the changes must be precleared before they can go into effect, this would spell a significant reduction in the extent of federal intrusion into state autonomy, thus strengthening the renewed sections' chances of surviving judicial scrutiny.

Secondly, because the quarterly reports will be nearly identical to the fact finding report that jurisdictions seeking bailout must produce, there would be a significant incentive to meet the bailout criteria so that they can file a single bailout request rather than quarterly reports on an indefinite basis.

Finally, as recent controversies have demonstrated, there is significant fear that the DOJ has ceased to impartially consider preclearance requests. If such truly is the case, or were to become the case, preclearance would be an undesirable mechanism for enforcement of the VRA because it would then become a shield to jurisdictions seeking to pass discriminatory voting changes. A quarterly report would rather make proposed voting changes a matter of record, force jurisdictions to explain their motives, and allow for public pressure on the DOJ if it fails to investigate a change that appears discriminatory.

I appreciate Hasen's proposal, above all for the spirit in which it is proposed. I feel that a proactive bailout is an excellent idea, but would place an excessive burden on the resources of the DOJ. I hope the House will give Hasen's proposal the consideration it deserves and that this will be the beginning of the debate the VRA renewal has needed and, thus far, lacked.

Tokaji: Why Process Matters

The present version of the Voting Rights Act reauthorization bill (H.R. 9) would make a significant change to the legal standard under Section 5 . While this change is important, I suggest in this post that the lively debate over VRA renewal has overemphasized the standard for preclearance while underemphasizing the importance of the preclearance process. That process, which isn't changed by the proposed amendment, creates a considerable risk of partisan manipulation and may not be adequate to protect minority rights from the most pressing threats. Congress would thus be well-advised to take a hard look at the preclearance process as well as the standard.

I start with the proposed amendment to change the standard for granting or denying preclearance. The amendment purports to reverse the Supreme Court's decision in Georgia v. Ashcroft, by providing that compliance with Section 5 should be judged by a proposed redistricting plan's impact on "the ability of any citizens of the United States, on account of race or color ... to elect their preferred candidates of choice."

There's been considerable debate among academics and advocates over whether this change is a good idea. These competing views are nicely represented in this recent exchange between Bob Bauer and David Becker, as well as in several of the posts appearing in this ongoing conversation. Briefly (and at the risk of oversimplification), the debate focuses on whether it's acceptable to trade off "safe" minority districts, in which racial minorities have a high likelihood of electing a candidate of choice, for "influence" districts in which there are enough minorities to influence the selection of a candidate but not enough to control that selection. Georgia v. Ashcroft gives some flexibility for states to make such trade-offs.

While I think that this debate over the Section 5 standard is consequential, I'm not sure the stakes are quite as high as it might at first appear. That's because the proposed amendment leaves much to be defined -- as did Georgia v. Ashcroft.

It's important to bear in mind that the Justice Department and the courts will ultimately determine how an amended Section 5 standard is interpreted. And the phrases "ability ... to elect" and "preferred candidates of choice" leave plenty of room for interpretation. Does the ability to elect mean minorities' ability to control the outcome? By themselves? And does "preferred candidate[] of choice" mean only the first-choice candidate? I expect that the courts, including the Supreme Court, will ultimately interpret these terms in a way that leaves considerable flexibility for covered jurisdictions. If anything, the new Supreme Court -- with Justice Alito and Chief Justice Roberts replacing Justice O'Connor and Chief Justice Rehnquist -- is likely to have a stronger inclination to protect state sovereignty than the old Court. A state-sovereignty orientation would presumably lead the Court to read the new standard in such a way as to allow state and local jurisdictions flexibility (assuming, of course, that it upholds Section 5's constitutionality).

Take, for example, a state in which two of ten congressional seats are presently "safe" black districts, in which minority-preferred candidates have a near-certain chance of being elected. Should the state be permitted to get rid of one of those safe districts, to create two others in each of which a minority-preferred candidate has a 50% of being elected? Or to create three districts, in each of which a minority preferred candidate has a 33% chance of being elected? I suspect that the Court will allow trade-offs of this sort, if and when the matter comes before it.

As a practical matter, however, application of the new standard will initially lie in the hands of the U.S. Department of Justice. It's therefore not just the courts -- in fact, not mainly the courts -- that will be interpreting and applying the new Section 5 standard, assuming that it remains in the reauthorization bill and that its constitutionality is upheld. That power will instead lie, in the first instance, with the Justice Department.

This brings me to an aspect of Section 5 that has, in my opinion, received too little attention: the process that's followed in preclearing proposed electoral changes. Section 5 allows covered jurisdictions to obtain preclearance through either the Justice Department or a federal court (specifically, the U.S. District Court in Washington, D.C.). In the vast majority of cases, covered states and counties choose to seek preclearance from the Justice Department, which is much less costly and cumbersome than going to court. And in the overwhelming majority of those cases, including redistricting cases, preclearance is granted.

This is a process that leaves considerable room for partisan manipulation. In the 1990s, ideological conservatives and some Democrats claimed that the Justice Department was engaged in such manipulation, under the Bush I Administration. Specifically, it was alleged that Justice wrongly denied preclearance, in order to compel the creation of districts in which minorities constituted a majority (or even a supermajority) of the population. While there's considerable debate over the Justice Department's motives, and over the extent to which the creation of such safe minority districts helped Republicans, it's generally believed that they derived some benefit.

The 2000s have again seen claims that the Justice Department is manipulating the preclearance process, although those complaints now come from a different quarter. This time, the claims focus on controversial decisions of the Bush II Justice Department to preclear the Tom DeLay-backed Texas redistricting plan and Georgia's photo ID bill. Internal memos leaked to the Washington Post reveal that the decisions to preclear both changes was made against the recommendations of career staff, who concluded that they would harm minority voters.

In an important respect, these new concerns are more serious than those raised in the 1990s. In the 1990s, the allegations of partisanship had to do with "false negatives" -- that is, with the Justice Department's supposedly wrongful decision to deny preclearance. But such false negatives are subject to correction: a covered entity may seek judicial preclearance from the district court in Washington (albeit at considerable expense) if it believes that Justice has erred in denying preclearance. On the other hand, where the Justice Department erroneously grants preclearance -- a "false positive" -- there's no judicial remedy. That's because the Justice Department's decision to grant preclearance is final and not subject to judicial review.

One point on which those across the political spectrum ought to be able to agree is that the present preclearance process is subject to partisan manipulation. In a sense, this reflects an oddity that has always existed under Section 5 -- specifically, that an enforcement agency (the Justice Department) is charged with performing an adjudicative function. This process worked pretty well for many years, mostly because Democratic and Republican administrations were both committed to discharging their duties faithfully, in a way that would promote equal participation and representation by racial minorities. More recent developments, however, raise serious doubts about whether Justice can be trusted to administer its preclearance duties evenhandedly, without regard to partisan consequences. These doubts are only exacerbated by the proliferation of partisan election administration rules like Georgia's photo ID law, which threaten to impede participation by racial minorities -- to the benefit of the party in control of both the state house and the White House.

Although it's less clear what should be done to fix the problem of partisan manipulation in the preclearance process, there are at least three changes that Congress should consider. One is to make Justice Department decisions to grant preclearance judicially reviewable. This would undoubtedly increase the costs of preclearance, but would reduce the risk of partisan manipulation of the process.

Another possibility, suggested by Professor Gerken, is to replace the current "top-down" model with a "bottom-up" approach. Under this approach, civil rights groups instead of the Justice Department would have the initial duty of monitoring changes and negotiating with covered entities if they object. This approach could reduce preclearance costs, and could be effective if civil rights groups are compensated for their efforts. But it wouldn't eliminate the risks of partisan gamesmanship, since the Justice Department would still have to serve as a "backstop" making preclearance decisions when civil rights groups and covered jurisdictions can't arrive at a negotiated agreement.

A third possibility is to take authority over some preclearance decisions out of the Justice Department's hands, and place it in a bipartisan agency -- one that, for example, consisted of two Democrats and two Republicans -- with a majority required in order to grant preclearance. In the event of a deadlock, the dispute would ultimately wind up in court. This would probably drive up the costs of preclearance, since more cases would likely be resolved judicially rather than administratively. On the other hand, it would guard against the considerable risk of partisan manipulation, especially false positives, that exists under the current process.

As I've discussed at greater length in a forthcoming article, I think some combination of these three options is probably optimal. Alternatively, Congress might consider more limited measures of promoting transparency in the Justice Department's decisionmaking, along the lines that Mark Posner has suggested. Whatever the approach ultimately selected, it's imperative that the preclearance process and not just the standard receive attention.

--Dan Tokaji

Hasen: Ed Still on the Costs of Proactive Bailout (and My Response)

Writing in response to my recent post, Ed Still writes on the election law listserv:

Rick,

The problem with "proactive" bailout provisions such as Westmoreland proposes is the lack of understanding about who has the most opportunity, ability, and incentive to gather evidence proving the matters called for by the bailout provision.

Take a look at the bailout requirement found in Section 4(a) of the VRA. Four requirements (A-C and E) are matters that can be found in the AG's files. Paragraph D requires the jurisdiction to show that it has not made any change that has not been submitted. How is the AG going to know that unless the Voting Section conducts an audit of every law, every regulation, every administrative bulletin implemented since 1964, 1968, or 1972? Paragraph F requires proof of the jurisdiction's affirmative steps beyond the prohibitions of Section 5 "changes" to have made things better for minorities. Again, how will the DOJ know this without doing a fact-intensive investigation "on the ground"?

I have been involved with some preclearance requests on behalf of jurisdictions. I know it is tough just trying to get some small places to find all the election procedures they changed so we can tell the DOJ that previous practices have all been precleared.

Ed Still

Here is my response:

Ed,
I think your argument proves my point. A proactive bailout proposal shifts the incentive to the DOJ (or rather, mandates the DOJ) to work in gathering this information. I want the DOJ to conduct those audits, with the cooperation of the local jurisdiction. If a local jurisdiction does not want to cooperate with a fact intensive investigation that DOJ conducts, then the jurisdiction will remain covered.

Now perhaps the argument is that DOJ doesn't have the resources to do this. If that's right, then give DOJ more resources in the VRA bill. And if the argument is that it would take longer than a year to go through all the jurisdictions, then the amendment could be reworked to require DOJ to begin with those jurisdictions that appear most likely to be able to bailout, and to complete a review within three years of the Act of all jurisdictions.

Rick

Gerry Hebert also will be posting his thoughts on the issue here shortly.

Katz: Why Reauthorization is Different

Numerous posts, to date, have focused on whether Section 5 should be extended in its current form, and whether Supreme Court will uphold it if it is. With the House of Representatives scheduled to vote this week on a bill to reauthorize Section 5 for another quarter century, I thought I'd offer a couple of thoughts on the second question. Specifically, how bad do things need to be in covered jurisdictions for the Court to deem a reauthorized Section 5 constitutional?

The prevailing view seems to be "pretty bad," with supporters and opponents of reauthorization disagreeing most vigorously about precisely how bad things are. It's an odd debate, particularly for supporters of reauthorization, who find themselves simultaneously celebrating all that preclearance has accomplished while lamenting the dire state of minority political participation in covered jurisdictions.

This gloomy view reflects the indisputable fact that discrimination in voting persists, and much of it remains quite serious. But it is also the upshot of the widely shared assumption that reauthorization of Section 5 will survive constitutional scrutiny only if Congress documents pervasive unconstitutional conduct in covered jurisdictions for which preclearance offers a remedy. Pam Karlan has recently argued otherwise, and in a forthcoming article (available here ) I take issue with this assumption as well.

I agree with much of what Pam has to say and indeed have written previously (see Reinforcing Representation, 101 Mich. L. Rev. 2341 (2003)) about the deference the Court has consistently accorded to the Voting Rights Act, even as the justices have articulated new and stringent limitations on congressional power to enforce civil rights in other realms. I think, however, that there is a distinct reason why reauthorization should not hinge on pervasive unconstitutional conduct in covered jurisdictions. Simply put, Section 5 is an operational statute. It was put into place forty years ago to combat precisely the type of pervasive discrimination Supreme Court decisions like City of Boerne v. Flores now demand for new congressional legislation.

Boerne and its progeny all involved the question whether a problem Congress sought to address was significant enough to warrant a new congressional statute. In that context, documentation of pervasive unconstitutional conduct signals a problem in need of a remedy. The Court should not, however, require a record of such conduct when Congress reauthorizes an existing statute. Indeed, if, four decades out, the evidence showed that covered jurisdictions were in fact still characterized by pervasive unconstitutional conduct of the sort preclearance was meant to target, then we should scrap Section 5 and hammer out a new statute that might actually address these problems.

Put differently, Section 5's very success in addressing racial discrimination in voting is itself neither proof that preclearance has become obsolete nor license for the statute to continue indefinitely. Instead, the question whether preclearance is still needed depends not on a raw assessment of the present scope of unconstitutional conduct in covered jurisdictions, but instead on a predictive judgment about the likely prevalence of such conduct absent the constraints imposed by Section 5.

Considerable evidence suggests that things have changed dramatically for the better in covered jurisdictions. While blatantly unconstitutional conduct has hardly been eradicated, contemporary manifestations of racial discrimination in voting are jarring precisely because they are no longer the norm, as they were before Section 5 was implemented. And yet, because these developments occurred in communities subject to the constraints imposed by Section 5, and, without doubt, were shaped by them, the question arises whether they would persist in the absence of the preclearance process.

That question can hardly be answered with certainty. Still, a study we conducted here at Michigan last year examining all published decisions under Section 2 of the VRA offers one lens through which to consider this prospect. Judicial findings under Section 2's totality of circumstances test offer a rich source of information detailing political participation nationwide, and a basis on which to compare such participation in covered and non-covered jurisdictions. I won't rehash all those findings here, but a few points are worthy of note.
Covered jurisdictions account for the majority of the Section 2 lawsuits in which plaintiffs achieved successful outcomes since 1982, even though less than one-quarter of the U.S. population resides in covered jurisdictions, courts in the region arguably apply standards that make success on a Section 2 claim more difficult, and the preclearance process blocks some portion of discriminatory electoral changes that might otherwise be challenged under Section 2.

More courts, moreover, have found the so-called Senate factors to be satisfied in covered jurisdictions than in non-covered jurisdictions. In particular, courts in covered jurisdictions have both found and have been more likely to so find: acts of official discrimination that curtail voting rights, the use of devices that enhance opportunities for discrimination against minority voters, a lower level of minority voter registration and turnout, contemporary voting opportunities shaped by the continuing effects of discrimination in various socio-economic realms, racial appeals, and a lack of success by minority candidates. Courts in both covered and non-covered jurisdictions found legally significant racial bloc voting in an equal number of lawsuits, but more courts in covered jurisdictions documented voting patterns that were extremely polarized and did so in a greater proportion of cases than did courts in non-covered jurisdictions. A racially exclusive slating process is the only Senate factor that more courts have found in non-covered jurisdictions than in covered ones.

None of this, to be sure, establishes a contemporary constitutional violation. Section 2's totality of circumstance inquiry nevertheless calls for examination of these factors based on the view that they all impede minority political participation and render electoral practices more likely to result in actionable discrimination against minority groups. This actionable discrimination is not necessarily discrimination that violates the Constitution. And yet, the reasons that render these problems probative of a Section 2 violation also make them indicia of an environment in which past unconstitutional conduct has yet to be fully remedied and future constitutional injuries are likely to arise.

That, of course, is not to say that preclearance necessarily remains 'congruent and proportional' so long as a full remedy has yet to be achieved, a prospect of future constitutional injuries exists, or identifiable differences persist between covered and non-covered jurisdictions. Indeed, it is not clear that the differences identified are sufficient to render a reauthorized Section 5 congruent and proportional legislation in the eyes of the Roberts Court, or indeed whether they should. But it is a debate about differences such as these that we should be having. The debate about reauthorization has instead focused for too long on the wrong question. The scope of unconstitutional conduct in covered jurisdictions cannot tell us whether preclearance is still needed. The debate on reauthorization should focus on evidence that might.
--Ellen Katz

Pildes: More on Bailout

[Note: The footnotes to this article appear below: in the extended entry portion of the post]

The bailout element of section 5 was originally designed in the 1965 Act to be integral to the overall structure, policy, and perhaps even the constitutionality of section 5. This element was to be a principal mechanism by which the coverage formula would properly adapt over time to remain congruent to where actual violations continued to occur. Congress' intent was that the unique regime of section 5 would thus unwind itself over time. Jurisdictions would bailout where appropriate; section 5 would have a more and more targeted reach; and the scope of the Act would remain tied to where problems predominated.

In the decision upholding the original section 5, the Supreme Court acknowledged that the original coverage formula might be overbroad, but that the bailout provisions, whose burdens the Court assumed would be "quite bearable" for covered jurisdictions, made the overall coverage-bailout structure sufficiently well tailored to be constitutional. South Carolina v. Katzenbach, 383 U.S. 301, 329-32 (1966). The Court also understood the bailout provisions to mean that "an area need not disprove each isolated instance of voting discrimination in order to obtain relief in the termination [i.e., bailout] proceedings." Id. at 332. As a declaratory judgment action immediately after the Act had been passed, Katzenbach was decided before the Court or Congress had any practical experience with the actual operation of the bailout mechanism.

Yet even by 1982, Congress recognized that, as a practical matter, the bailout mechanism had failed to perform its intended function. As of 1982, only nine jurisdictions had managed to bailout of section 5 coverage.[1] Congress concluded that this unanticipated low rate was caused, in part, by failures in the way the bailout provisions had been designed. Thus, Congress amended section 5 in 1982 in an effort to make bailout easier and more effective.[2] The DOJ estimated that 25% of counties in the major covered states would be eligible to bailout within two years of the amendments, by 1984.[3] At the time, some viewed this as a 'greatly softened bailout standard' and 'not a provision which the civil rights community wanted,' based on the view that the new standard would make bailout too easy.[4]

Yet as a practical matter, these amendments have failed to have much effect. Since 1982, only 9-11 counties in the entire country, all in Virginia, have attained bailout status.[5] And even these few bailouts do not appear to have broad implications. In these counties, the black population ranges from 1.1% to 9.1%, as of the last decade, the time frame in which DOJ approved bailout for these counties. The Hispanic population ranged from 0.5% to 7.2% during this same period. That only 9-11 counties -- with minority populations this low -- have managed to bailout does not appear to attest to the practical effectiveness of bailout.

In an earlier post, I noted four possible reasons bailout has not, as a practical matter, been used. I suggested there that Congress should first develop a more complete record in order to understand why bailout has not been more of a practical option, since whether legal changes are appropriate, and if so, in what form, depends on understanding the reasons it is so rarely used. Absent that more complete record, I can suggest several modifications, in order of importance, that might improve the bailout process:

1. Congress could require DOJ to take the initiative in identifying jurisdictions eligible or potentially eligible for bailout. Many witnesses that have addressed bailout have made recommendations of this sort. Thus, J. Gerald Hebert, the principal lawyer representing jurisdictions in bailout applications, has made a similar suggestion. In House hearings, his written submission stated: "I would recommend that when the legislation is reauthorized, Congress suggest the Department of Justice provide more information to localities about how to achieve bailout and encourage them to do so."[6] Professors Michael McDonald and Richard Hasen[7] have made a similar suggestion.

Shifting the initiating role in bailout to DOJ would address several possible reasons bailout has been so rare. To the extent jurisdictions are not well informed, a DOJ lead role could rectify that. A DOJ role could also reduce the financial costs to jurisdictions of the bailout process. Most importantly, to the extent elected state and local officials are risk averse about the political perceptions associated with their taking the lead in seeking to have their jurisdictions removed from section 5 coverage, shifting the initiating role to DOJ could mitigate perceptions of that sort, when those perceptions are not grounded in the actual facts. My sense is that this last factor does indeed play a significant role in explaining why so few jurisdictions have sought bailout.

2. Currently, towns, cities, and other local governmental units cannot bailout unless the entire county in which they sit can bailout as well. A better approach might well be to permit these local governmental units to bailout independently. That would bring the local government-county relationship under section 5 into the same relationship as the county-state one. Currently, a county can bailout even if the state in which it exists cannot. If there are policy reasons that the same relationship should not apply at the more local level, I am not aware of them. Again, the principal lawyer representing covered jurisdictions in bailout applications, J. Gerry Hebert has made this same recommendation in the House hearings.[8]

3. Congress could exclude from section 5 jurisdictions that today have populations below certain threshold levels of the minority groups protected under the VRA. The level at which that threshold should be set would require study and discussion. Perhaps populations somewhere below 5-10% would be an appropriate threshold, but I offer that only as a starting point for consideration. Among other effects, such a change would address the oddity of certain small towns in New Hampshire, for example, being swept into section 5 by the broad coverage formula. These jurisdictions might have been brought within the sweep of section 5 not because of a considered policy judgment that they warranted inclusion, but because the simple, general coverage criteria initially adopted formally applied to them.

Most importantly, I believe there can be broad-based consensus on improving the bailout process. Doing so in appropriate ways would not only be good policy. It would also indicate that the policymaking process is capable of adjusting the unique and extraordinary mechanism of section 5 to changing realities. That can only enhance the constitutionality of section 5 as a whole, particularly if Congress does not adjust the coverage formula in any way at all. Section 5 does not expire until 2007. It would be quite unfortunate were Congress to rush the proposed bill through without determining whether broad consensus on bailout reform exists and without reflecting such a consensus in the bill.

--Rick Pildes

Footnotes

1. Michael P. McDonald, Who's Covered? The Voting Rights Act Section 4 Coverage Formula and Bailout Mechanism, in THE FUTURE OF THE VOTING RIGHTS ACT (David Epstein, Richard H. Pildes, Rodolfo de la Garza, and Sharyn O'Halloran, eds., forthcoming, Sept. 2006). For a more comprehensive examination of the history of bailouts, see Paul F. Hancock and Laura L. Tredway, The Bailout Standards of the Voting Rights Act: An Incentive to End Discrimination, 17 Urb. Law. 379 (1985).

2. For a thorough study of Congress' consideration in 1982 of, and amendments to, the bailout provisions, see Paul Winke, Why the Preclearance and Bailout Provisions of the Voting Rights Act Are Still a Constitutionally Proportional Remedy, 28 N.Y.U. REV. L. & SOC. CHANGE 69 (2003).

3. Id. See also Hancock and Tredway, supra note ___ at 412.

4. See id. at 423 (quoting testimony of NAACP Executive Director and MALDEF President and General Counsel). See also McDonald, supra note ___.

5. See The Voting Rights Act: An Examination of the Scope and Criteria for Coverage Under the Special Provisions of the Act: Oversight Hearing Before the H. Subcomm. on the Constitution, Comm. on the Judiciary, 107th Cong. 88 (Oct. 20, 2005) (statement of Gerald Hebert, Esq., former acting Chief, Civil Rights Division, U.S. Department of Justice).

6. Hebert testimony, supra note __ at 90.

7. See McDonald, supra note ___; An Introduction to the Expiring Provisions of the Voting Rights Act and Legal Issues Relating to Reauthorization, Before the S. Comm on the Judiciary, 108th Cong. 4-5 (May 9, 2006) (statement of Richard L. Hasen, Professor, Loyola Law School).

8.Hebert Testimony, supra note ___ at 91.

--Rick Pildes

Hasen: Proactive Bailout Amendment to Be Offered in House Rules Committee

I have been advocating a proactive bailout amendment for VRA renewal that I think can increase the chances that a renewed VRA passes constitutional muster without weakening the important protections of section 5. Rep. Lynn Westmoreland will be offering this amendment on proactive bailout today to the House Rules Committee. That committee will determine if the amendment gets offered on the floor of the House during the vote on VRA renewal on Thursday. His office also has issued this explanation of the proposed amendment.

Aside from the general statement in Laughlin McDonald's Findlaw piece opposing a "preemptive weakening" of the VRA renewal amendment, I have not seen anything written from anyone on the merits as to why proactive bailout is a bad idea. I think I prefer the language I've crafted to the Westmoreland amendment, but I'm asking the more general question. What are the arguments against proactive bailout, provided that the standards for which jurisdictions may bail out don't change? Just to answer what I consider to be an obvious objection: what prevents a political DOJ from overreaching and consenting to bailout in too many jurisdictions? The answer is that if DOJ does so, at least under my proposal intervenors can object and the three-judge panel considering the bailout request must conduct a hearing on whether bailout is warranted.

"English-only now lurks at the ballot box; No more pamphlets: Utah says the Spanish-language voter info will cease unless the feds say otherwise"

The Salt Lake Tribune offers this report. Some who favor reauthorization of VRA section 203 (the foreign language provisions) might be upset that the question of ballot translation is becoming emboiled in the immigration/English only debate. (Note the ignorance of the anti-illegal immigration activist quoted in the article as saying: "You can't vote unless you are a citizen. You can't be a citizen unless you speak English." Of course, we don't give a literacy test to any citizen born in the U.S. who is otherwise eligible to vote.) When I was on Airtalk yesterday talking about the Padilla v. Lever case, it was clear that some listeners are connecting questions over 203 with the broader immigrant debate. See also this posting by Peter Kirsanow.

But there's a silver lining. It can help bolster the case for the measure's constitutionality. (Here are Dan Tokaji's earlier thoughts on that issue.) The stories like the one coming out of Utah help illustrate the intentional discrimination that likely would arise against those who are eligible to vote but may not speak English (well) in the event that Congress would not renew section 203.

New Ellen Katz Paper on VRA Renewal

Ellen Katz has posted a new draft paper, Not Like the South? Regional Variation and Political Participation Through the Lens of Section 2. I quickly read this draft and think it will be important in the legal debate over the constitutionality of a renewed section 5. It presses the point that I've been disagreeing with: that because section 5 has been such a good deterrent, the Supreme Court shouldn't require Congress to meet the same evidientiary burden it would need to meet with a new statute.

"Defending Georgia v. Aschroft (While Supporting Renewal of the Voting Rights Act)"

Bob Bauer will be presenting these remarks at the ACS Convention. It begins:

On the right today, there is some distress over components of the negotiated renewal of the Voting Rights Act, the claim being that the preservation of the "trigger" or the 25 year renewal period are unfair to covered states or lacking in "modernity." Yet both the left and right seem comfortable with the provision effecting a "partial reversal" of the Supreme Court's decision in Georgia v. Ashcroft. On this point, I think progressives are mistaken. For while the renewal overall makes sense, it is better enacted without this additional feature. In fact, Georgia v. Ashcroft--not its invalidation, partial or otherwise--fits well within the preserved core of the VRA as contemplated under the negotiated agreement now before the Congress.

Bob's paper is very interesting, especially read against the uncertainty of the language that the draft bill uses to assure the partial reversal of Ashcroft. The bill says that the Supreme Court in Georgia v. Ashcroft "misconstrued Congress' original intent in enacting the Voting Rights Act of 1965 and narrowed the protections afforded by section 5 of such Act." Later the bill states that any voting qualifications etc. "that has the purpose of or will have the effect of diminishing the ability of any citizens of the U.S." to "elect their preferred candidates of choice" {note: language corrected 6/17 from an earlier error] violates section 5. Bob notes (fn. 4) that the section lacks clarity.

There are two interesting questions to ask regarding this language: (1) what would courts interpret the language to mean? and (2) why would "the deal" include a provision lacking in clarity?

On the first point, we have already seen some early attempts to give the meaning certain content in particular directions. Compare, for example, the discussion beginning on page 68 of the Final House Report with Part III (beginning on page 7) of Nate Persily's supplemental testimony before the Senate Judiciary Committee. There's a certain parallel here with the debate in 1982 over the meaning of section 2, which ultimately got "clarified" when Justice Brennan crafted his three-part threshold test, followed by a "totality of the circumstances" test, in Gingles.

On the second question, sometimes lack of clarity in legislation is necessary to keep a deal together. Perhaps the section has not been drafted more clearly (for example, to tell us how the courts should treat influence district claims under section 5) because to do so would break up the coalition between the Republican leadership and the CBC in the House.

In any case, we can be sure that if the VRA renewal passes in this form, there will be plenty of work for lawyers urging various interpretations on the courts of this provision, and room for a political DOJ (Democrat or Republican) to read it in ways that might suit the Administration's political needs.

Two More Law Profs Join VRA Renewal Guest Blogging

I am pleased to add two important voices to the law professor forum on VRA renewal.

Ellen Katz, a law professor at Michigan, was the primary researcher and writer of this important report on the history of section 2 violations since 1982.

Spencer Overton, a law professor at George Washington, is the author of the new book, Stealing Democracy: The New Politics of Voter Suppression (whose praises I have already sung).

I look forward to reading their interesting contributions!

Hasen: Karlan on Congressional Power to Renew the VRA Preclearance Provisions

Pam Karlan has posted this paper on the ACSBlog (link via Ed Still). This is a very important paper, the first one I think to seriously respond to the questions I have raised on the topic. (Others have responded in congressional testimony, mostly with platitudes about Congressional power.) I look forward to reading Pam's paper more closely. From what I can tell from my initial look, the main place I quarrel with the paper is on Pam's prediction of how the new Roberts Court is going to deal with the "new federalism" cases. There's not a mention of Justice O'Connor's position as the swing voter in Tennessee v. Lane, and the replacement of O'Connor and Rehnquist (whose vote also mattered in Hibbs) with Alito and Roberts.

I wonder whether Pam would agree with me that, despite our disagreement over the likelihood of a Supreme Court overruling of the renewed provisions of the VRA, some changes to the VRA would enhance its chances of being upheld, such as the proactive bailout proposal I have made. I know that Laughlin McDonald opposes what he views as a "preemptive weakening" of the statute. I don't think it is preemptive. I fear that a Supreme Court decision striking down the renewed VRA provisions would do a great deal of damage: "[I]t is not clear that the political coalition that could pass the renewed VRA in its current form would reach agreement on a narrower VRA after Supreme Court invalidation. In addition, and crucially, these arguments ignore the effect of having a decision on the books that partially overrules the VRA. As I recently told the Senate Judiciary Committee, a Supreme Court holding striking down section 5 of the Act could pave the way for striking down the (now more important) section 2 of the Act - under which key voting rights litigation now proceeds, and other civil rights laws as well. If section 5 is held to exceed Congressional power, might other civil rights laws be held to do the same?"

Hasen: Using Republican Protests Over VRA Renewal to Mend, Not End, the VRA

Rep. Lynn Westmoreland has written this oped for The Hill, "Georgia has changed for the better, and the Voting Rights Act should too," which appears to be the same as this one that appeared May 29 in the Atlanta Journal Constitution.

I normally don't link to opeds that appear in numerous places, but here I think it is interesting that this is appearing now. In my recent Findlaw column on VRA renewal, I wrote: "A few House members from Georgia and Texas are making noises about extending the act nationally, but this appears to be just political posturing for the folks back in their districts." I am now wondering if this is more than "making noises." That is, I am wondering whether some Republicans like Westmoreland are serious about fighting for changes in VRA renewal.

It seems pretty clear that the Republican leadership, along with Democrats in the House, will be able to pass a renewal, even over the objections of a few Southern legislators. The real question, I think, is going to be whether Sens. Cornyn and Sessions on the Senate Judiciary Committee, along with potentially other Senators, are going to take steps to try to make changes in the bill. These Senators will have a lot more power to force such changes than the House skeptics.

Bob Bauer has rightly questioned whether the agonizing of Sen. Cornyn over the constitutionality of a renewed VRA is sincere. He'd likely say the same of Rep. Westmoreland's agonizing. But these protests present an opportunity for those in Congress who are more committed to a renewed VRA that passes constitutional muster to craft a compromise on the bill. That is, even if one does not accept Sen. Cornyn's or Rep. Westmoreland's concerns as genuine, there are real concerns about the constitutionality of the Act that VRA renewal supporters should address. The Cornyn-Westmoreland concerns provide the right political climate of "compromise" to make some changes in the VRA renewal bill, such as adopting a proactive bailout provision.

Answers to Judiciary Committee Questions on VRA Renewal

After my appearance at the Senate Judiciary Committee hearing on Voting Rights Act renewal earlier this month (testimony here), I received follow-up questions from Senate Judiciary Chairman Arlen Specter, and from Senators Cornyn and Sessions. I have posted my responses to the questions here.

"What Congress Should Consider Before Renewing the Voting Rights Act: A Chance to Preempt Supreme Court Invalidation, and Better Protect Minority Voting Rights."

I have written this Findlaw column. It begins: "Important provisions of the Voting Rights Act (VRA) expire next year, unless renewed by Congress. The good news is that a vigorous debate is taking place over whether, and how, the relevant VRA provisions should be amended before they are renewed. The bad news is that this debate is taking place among academics, not among Members of Congress."

Another Jurisdiction Attempts to Bail Out from VRA Coverage

It is the City of Salem, Virginia. You can find the request before the three-judge court here. Gerry Hebert tells me that, if successful, this would mark the 11th jurisdiction to bail out from coverage of the VRA since 1982. I believe these were all or mostly in Virginia, and all or mostly handled by Gerry, the Bailout King. I hope that Gerry will weigh in on my proposal to ease bailout requirements in the renewed VRA as a way to try to save its constitutionality.

Persily: Shaw, the Texas Gerrymander, and the Reauthorization of Section 5

One issue that I think may not have been covered in this blog is the relationship between the reauthorization of section 5 and the voting rights issues involved in the Texas gerrymandering case (Sessions et al. v. Perry). In particular, there are the two section 2 claims (Martin Frost's district and the failure to create an additional Hispanic district in the south) and two Shaw claims involved with Henry Bonilla's district and the district that stretches from Austin to the Mexico border.

In my earlier post I did not mean to understate the importance of the Shaw line of cases (as voiced by Abigail Thernstrom in her testimony) to the way the Court may resolve the constitutional questions surrounding the reauthorization of section 5. The 1990s round of DOJ-inspired majority-minority districting, as Thernstrom explains, led to the Shaw cases, and those precedents may lead the Court to strike down the proposed retrogression standard in the reauthorization bill.

I see the Shaw cases - assuming they exist as real precedent post-Easley - cutting both in favor and against the current bill. On the one hand, there is the argument that the new retrogression standard (the Ashcroft fix or ability to elect standard) is itself a violation of the Equal Protection Clause or will lead DOJ to force the creation or maintenance of districts in which race was the predominant factor. Indeed, if the law actually said that all majority-minority districts must be maintained, then I suspect Kennedy would vote to strike it down. This is why I think Congress (and then later the Court in interpreting the statute to avoid constitutional difficulty) will/should be clear that the ability to elect standard (1) does not place primacy on majority-minority (over 50%) districts, per se, (2) does not freeze in place the racial percentages in current districts for 25 years, and (3) does not permit retrogression by way of overconcentration (packing) of minority districts. If I am wrong about that, then the basic rule against racial predominance in Shaw/Miller could lead to the Court striking down the law.

However, the existence of Shaw as a background restriction on the drawing of minority districts could also help save the statute. In other words, the ability to elect standard is constitutional precisely because Shaw only allows districts created pursuant to that standard where race does not predominate or if it does, then the standard allows such districts only when narrowly tailored to avoid a voting rights violation.

Here is where the Texas case comes in. District 25 (the Austin to Mexico district) is an offset district - meaning that it was created to avoid a voting rights violation that might be caused by the drop in the Hispanic population in a different (Henry Bonilla's) district. Although it is unclear and perhaps unlikely that the Court will view District 25 through the eyes of Shaw (as urged by the Democrats), if the Court does, then it may offer some ideas as to whether the district is narrowly tailored to avoid dilution or retrogression. (Of course, the Supreme Court, like the District Court, may just write all of this off as part of a partisan gerrymander and say partisanship, not compliance with the VRA, predominated in the construction of this district.) However, if and how it deals with that Shaw claim as well as MALDEF's Shaw claim on Henry Bonilla's district (which they argue is kept at barely 50% simply for racial reasons), could offer some insight as to how the Court may view the ability to elect standard. I suspect they will sidestep the issue of whether compliance with section 5 (or 2) is a compelling state interest that justifies the narrowly tailored creation of an otherwise Shaw-violative district, but maybe we will get some idea on that as well.

The VRA section 2 claim concerning Martin Frost's district is also relevant to the reauthorization debate. The claim there is that Frost was the African American community's candidate of choice, and that the reconstruction of his district diluted the black vote, despite the fact that African Americans did not constitute a numerical majority in the district. While some might call this a Section 2 influence district claim, both the memo from the DOJ line attorneys and the plaintiffs' brief describe Frost as the minority community's candidate of choice. Now, I don't think for a minute that this will be an argument that will win over the Court's majority. However, we have here, in essence, a claim about the ability of African Americans to elect their preferred candidate of choice - i.e., the standard that now appears in the reauthorization bill. How the Court evaluates this claim could give us an idea of what they would think about that standard in general.

I recognize this discussion will seem like overly nuanced inside baseball to some and beside the point for others who think the Court will largely ignore the voting rights and Shaw issues. Yet, if the Court does deal with these claims, as I suspect the more liberal Justices will and as Justice Kennedy seemed to indicate at oral argument, we may get some insight as to what they think of the constitutionality of the standard in the reauthorization bill.

--Nate Persily

Karlan: Senator Cornyn on speaking English

Rick Hasen's post on the VRA quotes Senator Cornyn as follows:

He said he also shares concerns about another element of the law regarding language assistance. Jurisdictions with high numbers of people whose native language isn't English must print bilingual ballots. Some must also provide translators.

"In order to be an American citizen you have to learn English. Why would we continue to publish ballots in a language other than English?''' That's a pretty compelling argument," Cornyn said.

Senator Cornyn is just plain wrong. Not to mention ignorant.

First, anyone born in the U.S. is a citizen regardless of whether he or she ever learns to read English. Perhaps he might remember that the precise question in Katzenbach v. Morgan was the constitutionality of the provision in section 4 of the original '65 Act suspending literacy tests nationwide for individuals who'd been educated in American-flag schools where the language of instruction isn't English.

Second, suggesting there's a problem with having translators ignores the fact that one place they've been used extensively is on Indian reservations to translate ballots into unwritten Indian languages for voters who can't read English (or can't read it well enough to cast a ballot effectively). What an outrage it would be to diesenfranchise Native Americans for not being sufficiently "American."

I would wager Senator Cornyn's ignorance comes from an anti-immigrant focus. Here, though, he's wrong for yet a third reason: the level of English proficiency required to become a U.S. citizen is significantly lower than the level of English proficiency a citizen might need to fill out his or her ballot. At the Earl Warren Institute voting rights conference in D.C. this past spring, Ana Henderson talked about an empirical analysis comparing the reading level necessary for the two tasks. Given how indecipherable I sometimes find the official California voter information pamphlet's explanation of ballot initiatives even though I graduated from law school, I don't doubt this for a moment: if we only let people become citizens if they could read and understand ballot materials, we could just get rid of the naturalization process altogether.

I suppose this is just another example of Cornyn shooting from the hip -- just like his outrageous comments last year rationalizing violent attacks on judges as somehow connected to judicial "activism" (by which I doubt he means decisions like Boerne, Garrett, and Kimel) -- but it's a nasty sign of the times.

--Pam Karlan

Tokaji: What About Section 203?

Most of the scholarly debate over the expiring provisions of the Voting Rights Act has focused on Section 5's preclearance requirement. But in terms of promoting equality of participation, the language assistance provisions of the VRA are at least as important. The language assistance provisions, Sections 203 and 4(f)(4), will also expire in 2007, unless renewed. While perhaps less controversial among legal scholars than preclearance, the language assistance provisions have generated somewhat greater opposition in Congress. This post explores some of the policy and constitutional issues surrounding language assistance. These issues are particularly germane at the moment, because they are part of the reason for Senate Republicans trying to slow down the consideration of VRA reauthorization, according to this report.

The most important language assistance requirement is Section 203. That provision requires language assistance for non-English proficient citizens, in places with a significant number or percentage of them and above-average illiteracy rates. States or political subdivisions (typically counties) are covered, if 1) more than 10,000 citizens or more than 5% of the population are members of a single language minority group, and 2) the illiteracy rate of language minorities is above the national illiteracy rate. A list of covered jurisdictions may be found here.

The other significant language assistance provision is Section 4(f)(4), which covers jurisdictions where a language minority group was over 5% of the voting-age population, materials were provided only in English, and less than half of the population was registered to vote in 1972. Jurisdictions covered by section 4(f)(4) must also meet the preclearance requirement of Section 5. The issues surrounding this requirement mirror those in the larger debate over preclearance on which this exchange has focused, so I'll mainly address Section 203 here.

Covered jurisdictions must "provide[] registration or voting notices, forms,instructions, assistance, or other materials of information relating to the electoral process, including ballots, ... in the language of the applicable minority group as well as in the English language." Both written materials and oral assistance should be provided to covered groups, which include Asian American, Hispanic American, Native American, and Alaskan Native citizens. Almost 300 jurisdictions are covered by Section 203's language assistance requirements.

Perhaps the reason that language assistance has gotten less attention than preclearance, at least from legal scholars, because the case for its renewal is relatively straightforward. Assistance to citizens who are not yet fluent in English, the argument goes, is essential to ensure equal access to the vote. These provisions are thus vital to ensuring equality of participation. By contrast, most of the issues surrounding Section 5 preclearance in recent years don't have to do with participation (i.e., the ability to vote and have one's votes counted), but rather with issues of representation -- most notably, with how voting districts are drawn, and what's necessary to ensure that minority groups' collective interests are adequately represented in legislative bodies.

While there is considerable disagreement over what's necessary to ensure equality of representation, and over what role the Justice Department should play in policing that norm, it's harder to disagree with the principle of equal and informed participation. In fact, Congress recently reaffirmed this principle when it enacted the Help America Vote Act of 2002 (HAVA). Section 301 of HAVA mandates that voting systems provide alternative language accessibility, specifically referencing Section 203's language assistance requirements.

The arguments for renewing Section 203 are, to my mind, compelling. These requirements are very important to language minority communities. To take one example, a 2004 exit poll of approximately 11,000 Asian American voters found that almost one-third of them needed some assistance. The percentage needing assistance was even higher for new voters. There are, to be sure, costs on covered jurisdictions to comply with Section 203, but those costs are well worth bearing in order to ensure that citizens who aren't yet proficient in English are able to participate and make informed choices. There's a reasonable argument that the federal government should at least partly subsidize local jurisdictions' costs, but the basic idea of providing help to non-English proficient citizens is hard to argue with. That's particularly true, given the complex initiatives and referenda that regularly appear on the ballots of many states. It's difficult enough to understand most of these ballot measures when they're written in one's native language, let alone in a second language.

A bit more difficult, at least to my mind, is determining the constitutional theory under which Congress has the power to require state and local government to provide language assistance. It's true that, in Katzenbach v. Morgan (1966), the Court upheld a VRA provision suspending literacy tests for those educated in American schools where their classroom language wasn't English. But as Rick Hasen and others have observed, the Court's new federalism cases have sharply limited Congress' authority to enforce civil rights, requiring that federal laws be "congruent and proportional" to the constitutional violations they purport to redress.

The conventional justification for the VRA's key provisions is that they're designed to redress intentional discrimination against minority voters. This justification makes sense when it comes to Section 2 and Section 5 of the VRA. Even though these provisions both incorporate effects-based tests that go beyond what the Constitution requires, those tests can be defended on the ground that they're needed as a prophylactic against intentional discrimination. I think the prophylaxis argument is bit more difficult with respect to Section 203. There undoubtedly has been -- and continues to be --a great deal of intentional discrimination against language minorities. But is it a congruent and proportional remedy to require all jurisdictions with substantial non-English proficient citizen populations and low literacy to provide affirmative language assistance?

An alternative justification is that Section 203 is needed to remedy intentional discrimination outside the voting process. Disparities in the educational opportunities offered to language minority groups, this argument goes, makes it necessary to accommodate citizens who aren't proficient in English at the polls. The evidence of unequal educational opportunities is undoubtedly strong. The problem is showing that these inequalities stem from intentional discrimination