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
Thursday, January 26
A Strange Take on Texas
AEI's website has this op-ed from Edward Blum, Roger Craig, and Abigail Thernstrom, on the Department of Justice's preclearance of the Tom DeLay-backed Texas re-redistricting plan. The op-ed, originally published in the National Review online, takes the position that DOJ's career staff were wrong to conclude that the plan was retrogressive with respect to African-American and Latino voting rights under section 5 of the VRA. It therefore concludes that the political appointees were correct to overrule them -- and says that the media missed the boat in suggesting otherwise. This view may not be correct, but it's also not that surprising; rather, it's pretty much what you'd expect from those on the right.

What's really strange is the punchline. Blum, Clegg & Thernstrom conclude from DOJ's actions with respect to Texas that section 5 of the VRA should be "scrapped" to prevent further "abuses." Huh? If you subscribe to the argument that the authors spend most of their article making, then the process actually worked as to Texas. Career staff made a detailed recommendation which, after due consideration, their political appointee bosses appropriately rejected. In other words, if we assume the authors' perspective on what happened with Texas to be correct, then this is a really bad example for the argument for letting the VRA expire.

My own view is that they're wrong on both counts. I don't think the process worked very well in Texas. At the very least, the political appointees actions create a serious appearance problem. I also disagree that VRA preclearance should be scrapped entirely. That's because I think there is a whole lot of racial bias that can creep into the political process -- and would do so if we got rid of the backstop that preclearance provides. Much of this depends on the extent to which one believes that racism remains a problem in covered states and counties, especially in the South, or whether one believes that "Jim Crow is dead."

Personally, I think racism is still a major issue. Recent events in Georgia, which Blum et al don't mention, bring this to life in dramatic fashion. Last year, the state enacted a photo ID law despite the lack of any evidence of voters showing up at the polls pretending to be someone they're not. The civil rights community was resolutely opposed to this law, on the ground that it would disproportionately exclude groups who lack state-issued photo ID cards. As in Texas, DOJ precleared the change against the advice of career staff. Staff's inquiry found that one legislator supporting the bill said that black voters in her district only vote if paid to do so. A federal court thereafter found the law to impose an unconstitutional barrier to the right to vote. Undeterred by this setback, the first thing the Georgia legislature did upon reconvening this year was pass a new version of the ID bill, with all Democratic senators dissenting. Amazingly, the supporters of ID requirement still lack evidence of anyone impersonating registered voters, and thus a factual predicate for the bill. As noted here, black legislators in the state stayed away from the MLK Day celebrations, to protest the hypocrisy of passing an exclusionary voting practice one minute and purporting to celebrate Dr. King's legacy the next.

Georgia is a great example of why the goals of theVRA still remains vital. It's also an example of why DOJ can't be trusted to fairly administer its preclearance duties under section 5. So in this sense, at least, Blum & co have a point. The preclearance process is flawed -- just not exactly in the way that they suppose. The solution is not to scrap section 5 entirely, as they recommend, but to consider how the flaws can be repaired. I've suggested some possibilities here. Congress should consider these and others when it addresses VRA reauthorization this year.

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