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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Saturday, December 10
 
Should VRA Preclearance Be Changed?
The latest word from inside the U.S. Department of Justice is that career staff are now being barred even from making recommendations on major cases under the Voting Rights Act. The Washington Post has this story and the Dallas Morning News this one, with Rick Hasen offering these thoughts. This follows reports that staff recommendations against Republican-backed election changes in Texas and Georgia were disregarded by political appointees, who decided to grant preclearance under Section 5 of the VRA in both cases. (See here for my earlier thoughts on this.)

If these reports are true, this is an alarming development providing added reason for doubting that DOJ's exercise of the preclearance power can be trusted. The concern is that DOJ will continue to preclear plans that benefit the party in control of the White House, even though they may have a negative impact on the voting rights of racial minorities. As it stands, there's no judicial check upon such abuses of DOJ's power. Investigating these reports and assessing whether the preclearance process needs to be modified should be top priorities for Congress as it considers the reauthorization of expiring provisions of the VRA in the coming year.

If it's determined that the present preclearance process is broken -- or at least that it's functioning is less than optimal -- what should be done to fix it? At least three options have been suggested.

One possibility, which I previously mentioned here, is to allow opponents of preclearance to challenge DOJ's preclearance decision in court. The advantage of this approach is that federal courts may be less likely to bow to partisan political considerations than DOJ's political appointees. A disadvantage is that litigation is time-consuming and expensive for everyone involved, including DOJ, affected states, disgruntled voters, and the courts.

Another possibility is to move authority over preclearance from DOJ to some sort of nonpartisan or bipartisan agency. I suggested one such scheme here, and Morgan Kousser of Caltech has proposed transferring DOJ's responsibilities to a new "super election agency" (including the FEC, EAC, and DOJ). Such approaches are worth considering, though designing an entity that can fulfill its responsibilities without regard to partisan politics would undoubtedly be a challenge.

A third possibility, suggested by Heather Gerken of Harvard, is to adopt "opt-in strategy that allows community and legislative leaders to negotiate the best deal possible for racial minorities but places a bargaining chip in their pockets--a chance to demand that the Act's traditional constraints apply when bargaining breaks down. " Instead of submitting changes for preclearance, covered states and counties would provide notice of planned changes. If community groups objected, there would be a negotiation process, with the chance to go to DOJ or to court if the process breaks down. An intriguing idea, though I've heard some grumbling among civil rights advocates that they're not in a position to do the type of monitoring that this system would demand.

My purpose here is not to advocate or oppose the adoption of any one of these changes. It is instead to encourage a long, hard look at whether Section of the VRA, in its present form, is functioning as intended. There will be a strong push by some to retain the status quo, though that may not be the best solution, particularly for people of color whose interests are -- at least arguably -- not adequately served by the present system.

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Moritz College of Law The Ohio State University