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
Monday, January 23
Why Congress Should Reexamine Preclearance
Today's Washington Post has this report on allegations that the U.S. Department of Justice is misusing its voting rights enforcement powers for partisan political purposes. The concerns grow largely from DOJ's decisions to preclear electoral changes in Georgia and Texas, against the advice of career staff.

Predictably, Attorney General Gonzales and other DOJ spokespeople deny that the department's voting rights decisions have become politicized. But it's awfully difficult to maintain that position with a straight face, when DOJ precleared the Republican-backed Georgia ID proposal -- widely viewed as a disenfranchisement tactic by civil rights advocates -- the day after DOJ staff wrote a detailed memo explaining why the ID law would likely have a retrogressive impact on minority voting rights. This isn't the first time that DOJ has been accused of misusing its voting rights enforcement power for partisan purposes, but the allegations appear to have reached a new level of intensity of late.

The big question is what can be done. Congress will, in the coming year, be considering whether to reauthorize provisions of the Voting Rights Act that expire in 2007. Among them is section 5, which vests responsibility for preclearing proposed voting changes in DOJ. It's very likely that section 5 will be reauthorized. The bigger question is whether the preclearance process should be changed, to diminish the possibility of partisan politics trumping evenhanded enforcement of voting rights. I've suggested some possible changes to the preclearance process here, and there are undoubtedly others that might be considered. It may turn out that, after going through the possible changes, Congress ultimately determines that the status quo, whatever its flaws, is less problematic than any alternatives. But it's something that should at least be examined.

Whether Congress will in fact change the preclearance process, or even seriously consider it, is another matter. One way of minimizing the partisan implications of any change would be to have the changes become effective in 2009, since we don't know which party will hold the White House -- and therefore DOJ -- in that year. That may make Republicans more likely to consider possible changes to the preclearance process, despite their present claims that it's working just fine.

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