Dan Tokaji's Blog
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
Wednesday, July 20
Preclearance, Preclearance, Preclearance
Section 5 of the Voting Rights Act of 1965 has been in the news a lot lately. Just today, there are three important news items relating to this provision, which requires certain covered jurisdictions -- including several states in the South and some counties elsewhere -- to obtain "preclearance" of any changes to their election procedures from either the Department of Justice or the U.S. District Court in Washington, D.C. This provision was designed to prevent covered jurisdictions from making changes to their election laws that surreptitiously harm minority voters.

First, the Mexican-American Legal Defense and Education Fund (MALDEF) today brought a lawsuit today against the State of California and Monterey County, challenging the failure to preclear Proposition 77, which is to appear on the California ballot on November 8, 2005. The initiative would change the manner of drawing districts throughout the state, taking it away from the legislature and giving it to retired judges. Monterey County is a covered jurisdiction under Section 5, meaning that changes to its election procedures must be approved, even if they take the form of changes mandated by state law. MALDEF is seeking a temporary restraining order preventing Proposition 77 from being placed on the ballot until preclearance is obtained. The San Jose Mercury News has this story on MALDEF's case, and parallel lawsuits by the California Attorney General and other groups seeking to stop Proposition 77.

Second, the New York Times has this editorial on a currently pending request by the State of Georgia, to preclear a law requiring voters to show photo identification. The U.S. Department of Justice is currently considering Georgia's preclearance request. The NYT urges that DOJ reject the request to preclear, on the ground that the proposed ID requirement would have an adverse impact on minority voters. I think the NYT is right on target here, particularly given recent evidence that young black male voters are much less likely to have a driver's license than others. I've taken a look at the materials that Georgia has submitted in support of its preclearance request, and don't see anything that would meet its burden of showing that the ID requirement is "nonretrogressive" -- i.e., that it won't make black voters worse off than they were before. But I'm skeptical as to whether DOJ will apply the preclearance requirement faithfully, given that photo ID measures are strongly backed by most Republicans and strongly opposed by most Democrats.

Third, the Washington Times is reporting that the Republican Party is planning to initiate reauthorization of Section 5 of the Voting Rights Act, which is scheduled to expire in August 2007. The Chair of the House Judiciary Committee, Rep. James Sensenbrenner (D-WI), is talking about a 25-year reauthorization of at least some parts of the Voting Rights Act which will expire then. According to Sensenbrenner, hearings will begin in the fall.

Why would the Republicans do this? Maybe to take this issue away fromt he Democrats. And maybe because, historically, the Voting Rights Act has been of some benefit to the Republican Party. Under the first Bush Administration, for example, the Administration refused to preclear redistricting plans without a sufficent number of majority-minority districts. Some have speculated that it's because packing reliably Democratic black voters in "safe" minority districts allows Republicans to make overall gains in the number of congressional and state legislative seats they hold. This phenomenon has been referred to as a "happy coincidence" between the interests of racial minorities and the interests of the Republican Party.

It remains to be seen, of course, whether DOJ will rigorously enforce Section 5 of the Voting Rights Act, when it comes to practices -- like the Georgia ID law -- that threaten to result in the denial of minority votes, or districting changes -- like Proposition 77 -- that would weaken the Democratic Party's hold on power in a state.

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Moritz College of Law The Ohio State University