Dan Tokaji's Blog
- Election Law Blog (Rick Hasen)
- Election Updates (Michael Alvarez & Thad Hall)
- Votelaw Blog (Ed Still)
- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
The White House & the Voting Rights Act
Undoubtedly relieved to talk about something else after getting battered with Rove questions, McClellan had this to say at the very end of the press conference:
Q Scott, voting rights reauthorization. I understand the President is for voting rights reauthorization, but he still wants to study portions of it. It sounds kind of contradictory. Could you explain what that means, as it's up for renewal?
McCLELLAN: Sure. As you point out, it's up of reauthorization in 2006 [note: the actual expiration date is 2007]. The President does support reauthorization. That process is getting underway in Congress. And as it works its way through Congress, the White House will look at and consider any improvements to strengthen it. And that's -- that's really where it stands at this point.
Q Well, what does he think could strengthen it? What tweaks is he thinking of right now --
McCLELLAN: Well, I think that's something we'll look at. There are suggestions that I'm sure people are going to make as we move forward, and we'll look at and consider those suggestions. The President also met with the Congressional Black Caucus and said he would take their views into account as we move forward, as well.
Two things are interesting about McClellan's response: first, the remark that the President "does support reauthorization;" and second, the comment that he would consider ways in which it might be "strengthen[ed]." It's not clear what this means, and McClellan declined to provide details.
One possible way of strengthening the VRA is suggested by a matter that's presently before the U.S. Department of Justice. The State of Georgia recently enacted a statute that would require government-issued photo ID in order to vote (Georgia House Bill 244). Georgia is a "covered" jurisdiction under Section 5 of the Voting Rights Act. That means that it must "preclear" proposed changes its election procedures before they can go into effect, with either the Department of Justice or the federal court in D.C. Georgia has submitted its ID law to the Department of Justice. As set forth in this letter and this press release, several civil rights groups have urged that the change not be precleared, which would prevent this change from going into effect.
Election changes may only be precleared under Section 5 if they have neither the purpose or the effect of denying or abridging the vote on account of race. The Supreme Court has interpreted this to mean that changes not be "retrogressive" -- that is, that they not make minority voters worse off than they were before. Faithfully applied, this standard would be difficult for Georgia to meet, given that African Americans are less likely to own a car and therefore to have a driver's license. The civil rights groups' letter also notes that, in 1994 and 1995 (under the Clinton Administration), the Department of Justice objected to a Louisiana voter ID law.
There are, however, reasons for doubting that the standard will be faithfully applied now. That's because strict voter ID laws have generally been supported by Republicans, who assert that they're needed to curb fraud, and opposed by Democrats on the ground that they will impede access to elderly, disabled, poor, and minority voters. Wherever one comes down on the ID debate, it's hard to imagine that the Department of Justice won't be influenced by partisan considerations as it decides whether to preclear Georgia's ID law.
This brings me back to McClellan's vague comment about "improv[ing]" the Voting Rights Act. One possibility would be to take responsibility for preclearance, at least in some cases, out of the hands of the Department of Justice. Responsibility might instead be placed in a nonpartisan or bipartisan panel. For example, preclearance might be handled by a board consisting of three Democrats and three Republicans, with a majority required in order to preclear changes. In the event that preclearance was denied, then the state could still go to federal court and seek preclearance.
This is just one possible amendment to the Voting Rights Act that might help eliminate the taint of partisanship that otherwise threatens to inhibit proper functioning of the preclearance process. I don't think this is what McClellan had in mind; nor do I claim that it's the best possible fix. But such modifications ought to at least be considered, as the debate over reauthorization proceeds.
Update: As regular readers of this blog have no doubt noticed, I've been experimenting with images lately. I've gotten some negative feedback on the McClellan/Chef photo, which I've now moved below. No, there's no South Park reference in the text -- I just thought the resemblance between McClellan and Chef's typical hand gesture was funny. But maybe not. Or maybe there's just not that much overlap between my audience and South Park's.
McClellan & Chef: Separated at Birth?
In any event, this is as good a time as any to say that your feedback (positive or negative) is always welcome, be it on style or substance. You can email me through the link in the upper right. I may not always have time to respond, but do appreciate it!