If only there were some mechanism to adjust it

Tom Keane notices something:

One section was uniquely provocative: It subjected some states and a few counties to particularly tough scrutiny — called “preclearance” — if they wanted to make any changes to their voting rules. Even slight measures — moving a voting location, for instance — had to be submitted to federal authorities for approval. Moreover, the onus was on the jurisdiction to prove that the change wouldn’t affect voters on the basis of their race, color, or language. The list of “covered jurisdictions” was first drawn up in 1965. It was modified in 1970 and then again in 1975. Congress extended the law for 25 years in 1982, but didn’t change the list. The same thing happened again in 2006. So by the time the case challenging the law got to the Supreme Court, it had been 38 years since anyone had really thought about who should be precleared or not.

Preclearance is kind of a scarlet letter that proclaims one a bigot. Back in 1975, the nine states named — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia — likely deserved to be shamed. So too did the handful of other areas (ranging from the Bronx to parts of Florida to three counties in California). But are all of those jurisdictions bad today? Probably not, and that, as Chief Justice Roberts pointed out in his majority opinion, is the issue; “the Act imposes current burdens and must be justified by current needs.”

Wow, that really is pretty bad. There must be no mechanism for updating the law, obviously. Oh:

As I have written before, this bail-out provision — and a companion “bail in” section roping intentional wrongdoers into a preclearance-like regime — connected the old problem to present circumstances.  Any jurisdiction not covered in 2006 was either never broken or was broken but healed.  Which means that any jurisdiction covered in 2006 was either healed but didn’t overly mind the costs of preclearance … or was not sufficiently healed.  The decision to re-up these jurisdictions in 2006 was emphatically a determination connected to 2006 information.

It is odd that bail-out — the logical relation that Congress did establish to connect forty-year-old facts to the present day — is all but absent from the majority’s decision.  It was mentioned three times at oral argument, but not by any Justice.  In today’s opinion, the Chief Justice mentioned it briefly in the course of reviewing the procedural history — including a review of the Court’s 2009 decision in NAMUDNO v. Holder that was all about bail-out.  But even though it should have been top of mind, there is no attempt in the substance of the opinion to confront bail-out as the living organism within the coverage formula, contracting coverage to suit present conditions.

Like the majority opinion, Keane’s article is notable for the lack of mention of the bail-out provision–especially because he mentions something similar:

Perhaps preclearance should be applied to all 50 states, making everyone equally subject to the scarlet letter. Or perhaps a simple, self-working formula could be developed for who gets preclearance or not. Disparities in voting rates between whites and minorities of, say, 10 percent, would automatically require preclearance for a county. Bring voting rates up, and preclearance would go away.

Given that might mean that a jurisdiction might be fine one election and not the next, given that different jurisdictions might have much different voting rates (if a county that is mostly minority has voting rates of 22% for minorities and 22% for whites, is that better or worse than a county that has voting rates of 70% for minorities and 85% for whites), given lots of other possible problems to his simple formula this particular formula might not work. Hmm, maybe something like:

Shelby County, Alabama, was on the list in the 60s. And it’s still on the list now. But that doesn’t mean the list is static.  Quite the contrary: change was built into coverage from the get-go.

On the one hand, the Voting Rights Act lets federal courts add areas with real race-and-voting problems to the list. And it also lets a federal court take jurisdictions off of the list, once they have a clean record for 10 years.  These provisions are known as “bail in” and “bail out.”

1 Comment (+add yours?)

  1. Roman Garrett
    Jul 01, 2013 @ 16:11:42

    Of course, these factors and more were debated in the re-authorization of the Voting Rights Act in 2006, and Congress, by a wide margin, still determined that Section 5 continues to be necessary. Indeed, one need only review the “race-conscious” rhetoric coming from advocates of strict voter ID and proof of citizenship laws to know that racial discrimination is exactly what they are all about, and that we need preclearance as a check on this dangerous trend as much as we ever have.

    Reply

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