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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Voting Rights Act Preclearance: Why Process Matters

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June 20, 2006

Yesterday, civil rights advocates organized a "National Call-In Day" to urge a floor vote on Fannie Lou Hamer, Rosa Parks and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 (H.R. 9). This bill would renew the provisions of the Voting Rights Act of 1965 (VRA) that are set to expire in 2007. It would also make a significant change to the legal standard under Section 5 of the VRA.

In this post, I suggest that the lively debate over VRA renewal has overemphasized Section 5's legal standard while underemphasizing the importance of the process followed under Section 5. Section 5 requires covered jurisdictions to preclear proposed electoral changes – including redistricting plans – with either the U.S. Department of Justice or a federal court before they may go into effect. 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. That's not to say that Section 5 should be allowed to expire. To the contrary, I think it should be renewed. But Congress would be well-advised to take a hard look at the preclearance process and not just the standard applicable under Section 5.

The Standard

I start with the proposed amendment to Section 5 that's received the most attention: 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 to the standard 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 on the Election Law blog's ongoing conversation regarding VRA renewal. 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. Critics argue that this flexibility is subject to abuse and that Georgia v. Ashcroft's fuzzy definition of an influence district fails to provide an administrable standard for judging compliance with Section 5.

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. There seems to be wide agreement that Georgia v. Ashcroft left the standard for judging Section 5 compliance somewhat vague. What exactly is an "influence" district? And under what circumstances is it acceptable (or even obligatory) to trade off a safe minority district for influence districts?

On the other hand, critics of Georgia v. Ashcroft like Becker seem to acknowledge that safe minority districts shouldn't be considered the be-all-and-end-all. They seem to agree that Section 5 analysis should also consider so-called "coalition" districts. As Rick Pildes explains, those are "ones in which the black registered voter population is less than 50% (typically 33%-39%) and the rest of the registered voters are non-Hispanic whites." As Professor Pildes points out, the category of coalition districts is analytically distinct from either influence or safe districts. There's language in the House Report to H.R. 9 indicating that coalition districts should be considered in the Section 5 analysis.

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 incline courts to read the new standard in such a way as to allow state and local jurisdictions flexibility (assuming, of course, that the Court 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 it's constitutionality is upheld. That power will instead lie, in the first instance, with the Justice Department.

The Process

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. As noted above, 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. Why would a Republican Administration want to do such a thing? Because the creation of such districts would have the effect of making surrounding more districts more white – the "bleaching" effect – thus benefitting Republican candidates in the aggregate. While there's considerable debate over the Justice Department's motives, and over the extent to which the creation of such safe minority districts actually 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 Heather Gerken of Harvard, 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.

A shorter version of this comment will appear as part of the ongoing discussion of VRA renewal on Rick Hasen's Election Law blog.