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As reported on CNN and as analyzed by Rick Hasen’s Election Blog, the U.S. Department of Justice has asked for an extension in trial court briefing deadlines in the Texas voter ID lawsuit due to a change in the federal administration.
The common-sense interpretation of this procedural move (as expressed by Professor Hasen)?:
DOJ will switch sides and join the State of Texas in arguing in favor of more restrictive voting requirements. More to come.
Charles Kuffner has linked to and commented on this interesting story from the Dallas Morning News investigative blog. Briefly, members of the Texas Democratic Party have asked the U.S. Department of Justice to investigate the 2010 armed raid by the Texas Attorney General’s office on the group Houston Votes.
So, why do I say that Abbott has played the race card?
In the body of the story, there’s this press-release response from the Abbott campaign, claiming that the executive director of Houston votes admitted that the group’s members had “fraudulently signed voter registrations and illegally collected information to sell to ACORN-linked Project Vote.”
There’s no mention of race within that sentence. But there is the word “ACORN.” On the right (and especially on the extreme fringe of the far right, e.g., among white supremacists who communicate their views online), “ACORN” is understood to mean “black,” or more particularly, to refer to a defined class of poor African-American voters who bear the brunt of white supremacist hatred. Illustrations of this odd but patently successful re-branding of ACORN by racists abound, most of them too vile and profanity-laced to cite politely (the link is to a follow-up story about Abbott supporter Ted Nugent’s description of President Obama as an “subhuman mongrel ACORN community organizing gangster.”) This story describes how the ACORN slander translated into racially-motivated threats in specific instances.
The well-placed (and baseless) smearing of Project Vote with the “ACORN” slander in a press statement is deliberate – it sends a message to the more openly bigoted hardcore racists in Texas, letting them know that Greg Abbott is on their side.
For those of you making use of web readers, the cited links are:
Michael Li was the creator of the now-dormant go-to blog for Texas redistricting information (http://txredistricting.org/), but has moved on to bigger things at the Brennan Center for Justice at NYU School of Law. Now that the nation’s eyes turn once again towards Texas and our state’s sometimes appalling politics, Mr. Li has penned this excellent summary of the suit, at: http://www.brennancenter.org/blog/texas-redistricting-battle-begins.
And this is the sort of lawsuit that very much benefits from expert analysis, because Perez v. Perry has outlasted the miniscule attention span available in broadcast media. My favorite bit of unhelpful analysis was something I overheard on our local NPR station yesterday – a pundit suggested that no matter which way the court ruled, conservatives would count coup against the U.S. Department of Justice.
His reasoning went like this – if the judicial panel in San Antonio finds discriminatory intent behind the 2011 redistricting, that finding will prompt “bail-in” review of Texas voting procedures under Section 3(c) of the Voting Rights Act, which will then vindicate conservative arguments that the Voting Rights Act is mean and unfair to Texas. And if the judicial panel finds that the plaintiffs have not proven discriminatory intent, that will also vindicate conservative arguments that the Voting Rights Act is mean and unfair to Texas.
Ho-kay. That was 15 seconds of sound bite that (1) fluffed anti-Voting Rights Act weirdo egos; and (2) was otherwise bracingly free of any actually useful analysis. It would have been more helpful if the pundit had said, “if, and to the extent that race does get used as a proxy for political self-identification, are we as a society okay with discriminatory intent? That question is a central one to the resolution of this lawsuit.”
As things currently stand, it’s legally okay for the majority party to cement its dominance through partisan redistricting. But as a practical matter, partisan redistricting is racial redistricting. And racial redistricting as practiced by many jurisdictions is redistricting intended to neutralize minority participation in the democratic process.
For the past year or so (and really, for the past eight years (and really, really, for the past … um … many decades that I’ve been a voter (and really, really, REALLY, for at least as long as I’ve been intellectually aware of the political process))), I’ve struggled with the question, “why do we vote?” Why does anyone vote? Why don’t we all vote? What is it we achieve by voting?
I haven’t always been consistent. I’ve wavered between two poles, (one being, “to the extent we vote, or more formally, to the extent that the public franchise is extended to anyone, the act of voting is the inalienable fountainhead of sovereign rule. We vote in order to ratify the coercive distribution of limited resources among alternate uses.” The other pole is “to the extent we vote, or more formally, to the extent that the public franchise is extended to anyone, the act of voting is the inalienable fountainhead of sovereign choice. We vote in order to achieve the optimal distribution of limited resources among alternate uses.”)
Those two positions don’t seem very far apart, do they? But they are – they are as far apart as they can be.
I mean, ultimately those two formulations (as you parse them out) could be distinguished like this. Some people (mostly on the liberal side of the political spectrum, but not exclusively) say that to vote is to participate in community. It isn’t that the individual choices actually made by the voters are good or bad, or that voting is any more likely or less likely to get us to some sort of perfect outcome, but that whatever outcome we choose (even the stupidest, worst, most costly, or most cruel outcome) can’t be legitimized unless we’ve all gotten to voice our opinion of that outcome.
Other people (mostly on the conservative side of the political spectrum, but not exclusively) say that to vote is to participate in strategic decisionmaking. In order to get the best, least stupid, most optimal outcome, we have to endlessly tweak and fiddle with the voting process to ensure that the stupidest, worst, most inept or cruel decisionmakers don’t get to participate.
Thanks to an exchange with a smart, thoughtful political economist currently at the LBJ School of Public Affairs at U.T. Austin (this is a shout out to Eli Poupko (http://www.utexas.edu/lbj/phdstudents/eliezer-poupko), and best wishes on your pending article), I realized that I hadn’t thought critically enough about this very fundamental philosophical divide that runs like a canyon across the breadth of political discourse.
I was sort of an outlier in my thinking on this topic – I self-identify as being on the “
smart,” “ wise,” “ correct,” liberal side of most political questions, and instinctively, I wanted to tweak the voting process to diminish the impact of “ stupid,” “ foolish,” “ uneducated,” “ cruel,” “ dull-witted,” “ immoral,” “ fat-headed,” conservative voters.
But the source of better policy isn’t better voting. In one sense, there’s no such thing as better or worse voting, at least in regards to the ratification of democratic policy choice.
The source of better policy choice rests in creating a better electorate. And you don’t get a better electorate by exercising discriminatory choice with respect to who gets to vote. You get a better electorate by building a better society. And you build a better society through education.
As a postscript, you also don’t get a better electorate by preserving the artificial legal fiction that partisan competition justifies gerrymandering and voter discrimination, or that the Department of Justice or the Voting Rights Act is somehow unfair because it doesn’t foster discriminatory intent.
Professor Jennifer Nou (University of Chicago) raises some interesting questions in an article she published back in February (“Sub-regulating Elections“) about the relative timidity with which Federal agencies (such as the Federal Elections Commission and the Elections Advisory Commission, but also the Department of Justice) have approached using the Federal Administrative Procedures Act in the context of voting and elections.
Among other things, Professor Nou suggests that: (1) overt institutional bipartisanship (wherein agencies are designed to reflect some idealized parity between the two dominant U.S. political parties) tends to lead to intractable institutional deadlock and failure. (A good example of this can be seen in the general ineffectiveness of the State of New York’s Board of Elections, which lacks any effective non-partisan tie-breaking mechanism, and so is more or less by design unable to actually accomplish any policy objective. Of course, the Elections Advisory Commission is another excellent example of what happens when a deliberative body is explicitly designed to divide evenly along partisan lines); and (2) that courts are less likely to give deference to administrative agency actions taken by partisan agencies.
On the second point, Professor Nou argues that the conservative wing of the U.S. Supreme Court was hostile to the position of the Department of Justice in Shelby County v. Holder (and in general) in part because the Voting Section of the Civil Rights Division was perceived as using Section 5 preclearance procedures under the Voting Rights Act to pursue an overtly liberal partisan agenda.
Ultimately, it didn’t matter whether or not there was any partisan bias in the way that Section 5 preclearance was conducted, and it didn’t matter whether the critics of the preclearance process actually believed the Department of Justice was furthering a liberal agenda. The Voting Section was vulnerable to such accusations because prior acts of executive interference by presidents on both the left and the right had occurred.
Professor Nou’s advice is that elections administration at every level of government should be non-partisan. “Non-partisan” isn’t the same thing as “bipartisan.” “Non-partisan” means that elections administration should be shielded and protected from partisan influence. As a former little gray bureaucrat, I heartily agree.
Resurrecting Submissions (But Not Preclearance) Using Title VI of the Civil Rights Act – Tracking Election Procedural Changes After Shelby County
What’s Up With Shelby County v. Holder?
Most readers of this blog already know the answer to that question, but to recap — on June 25, 2013, the United States Supreme Court issued an opinion in a voting rights lawsuit involving Shelby County, Alabama, and the Attorney General of the United States. As court watchers had expected, the Supreme Court found a key section of the Voting Rights Act (Section 5) to be unconstitutional. One consequence of the decision was that a process called “preclearance” ended, meaning that as of June 25, 2013, the U.S. Department of Justice no longer reviews and approves changes in voting procedures that have been adopted in certain jurisdictions.
I think the U.S. Department of Justice (DOJ) has a strong and defensible statutory reason for tracking election procedures across all jurisdictions in the United States, independent of the specific requirement in Section 5 of the Voting Rights Act (VRA) that covered jurisdictions had to submit changes in their voting procedures for preclearance. (For those of you asking, “What the heck is Section 5?” the Voting Section of the Civil Rights Division at DOJ has an excellent short summary of this key element of the Voting Rights Act of 1965, along with historical background.)
Mandatory Notification of Changes in Election Procedures Under Title VI of the Civil Rights Act
I propose that DOJ should promulgate some new rules that would more or less recapitulate the guidelines for preclearance submissions under Section 5 of the Voting Rights Act, but in the context of compliance reporting under Title VI of the Civil Rights Act of 1964 (hereafter “the Civil Rights Act” or “the Act.” With statutes such as the Civil Rights Act of 1964, one has to specify the date, because there are a lot of laws with the name “Civil Rights Act”).
Some explanation is in order for people who may not be familiar with how the Act is organized. The Civil Rights Act of 1964 (along with later amendments) is a breathtakingly broad and powerful response to a century’s worth of endemic racial discrimination; the Act has lots of parts that accomplish different goals, all with the objective of shutting down the often slippery and duplicitous efforts of Southern segregationists to avoid meaningful enforcement against institutional racism.
Because the Act is so large, it is broken down into smaller sections (Titles) that focus on different ways that institutional racism manifests. Title I is the “voting part” of the Civil Rights Act, but it is pretty weak — unlike the Voting Rights Act of 1965, Title I of the Civil Rights Act doesn’t get rid of tests or qualifications to vote, but just requires that such tests be applied fairly. Title II of the Civil Rights Act allows the use of court-issued injunctions against private businesses that cater to the general public but refuse service on the basis of race (examples would include restaurants or hotels that might prohibit African-Americans, or that might offer inferior or different service based on race). Title III of the Civil Rights Act accomplishes the actual desegregation of public accommodations. Title IV desegregates public education, and Title V creates the Commission on Civil Rights.
Title VI (the part of the Civil Rights Act that I’m talking about) prohibits acts of discrimination by agencies or organizations that receive federal financial assistance. I’m focusing on Title VI because that part of the law includes very broad authorization of rulemaking authority by federal agencies such as the DOJ. In terms of rulemaking, Title VI of the Civil Rights Act is very different from Section 5 of the Voting Rights Act, which contains no explicit rulemaking authority.
In fact, one of the limitations of the Voting Rights Act is the incapacity of federal agencies to make use of that law to justify formal administrative enforcement. The Voting Rights Act enables access to the Federal courts in order to protect against discrimination in voting, but it doesn’t explicitly enact much in the way of non-judicial bureaucracy to enforce it.
Some of the other titles in the Civil Rights Act are famous (such as Title VII, which creates equal employment opportunities and guards against discrimination in employment), while others are less well-known (Title VIII authorizes the Commerce Department to collect statistical data on voter registration, and Title IX authorizes removal of civil rights cases from the courtrooms of segregationist Southern judges). There are other titles as well, but as I mentioned, I’m mostly interested in looking at Title VI.
Title VI of the Civil Rights Act and Part 42 of Title 28, Code of Federal Regulations
The rules that Federal agencies adopt are collected into a series of volumes entitled the “Code of Federal Regulations,” which is organized thematically into titles and sections. Title 28 of the Code of Federal Regulations contains rules promulgated by DOJ, and Part 42 of Title 28 contains DOJ rules for enforcing Title VI of the Civil Rights Act of 1964.
This is where my proposed rules would logically be placed, but this is not where you would look to find the “administrative guidance” adopted by DOJ to guide entities in making submissions under Section 5 of the Voting Rights Act. That “guidance” (because, remember, the Voting Rights Act didn’t authorize the creation of agency rules) is found in Part 51 of Title 28.
I mention Part 51 because I freely cut and pasted huge swaths of that preclearance submission guidance into my proposed rules. That’s because I want to enrich and expand the submission process, preserving the administrative apparatus of Section 5 submission as much as possible. I don’t want to reinvent the whole thing because it’s better public policy to build off the established framework.
Thus, 28 C.F.R. Part 42 (the administrative rules promulgated by the DOJ to administer the Civil Rights Act) should be amended to include a new Subpart J (labeled beginning with Sections 42.801 through 42.826) that would recapitulate the structure and contents of the submission guidelines in 28 C.F.R. Part 51, but exclude the enforcement provisions or selective categories of covered jurisdictions (that had previously been addressed in Section 5 of the Voting Rights Act).
Replacing “Submissions” with “Reports”
Notice the stylistic changes I made in the proposed rules. No mention is made of “submissions,” and there’s no mechanism for reviewing the “reports” that federally funded agencies must, under these proposed rules, submit to DOJ. That removal of review is intentional — no longer are jurisdictions (e.g., states, or any part of states, or any other jurisdiction) being singled out for preclearance of their voting changes. Instead, the proposed rules would compel jurisdictions to report voting changes to continue to qualify for federal funding.
Applying the “Report” Requirements to All Political Subdivisions
You’ll also notice something pretty major when you read the proposed rules. As drafted, the rules apply to all political subdivisions, not just in the South or in “trouble spots,” but everywhere. This drafting constitutes a dramatic expansion of reporting requirements, far beyond the old submission process, and it’s not accidental.
First, the expansion would enable DOJ and Congress to acquire the hard data they need to reconfigure and revive the coverage formula in Section 4 of the Voting Rights Act of 1965. Second, the expansion addresses the implicit or explicit complaints of conservative critics of the Voting Rights Act, which was (in a nutshell) that the Voting Rights Act of 1965, as applied, was unfairly burdening the South in comparison to other jurisdictions, without regard to whether those other jurisdictions exhibited patterns of racist behavior.
These Rules Don’t Substitute For a Robust Voting Rights Act
I applaud efforts to fix or rehabilitate the Voting Rights Act of 1965 (and there are all sorts of good proposals, from piggybacking some new “non-binding guidance” onto Section 2 of the Act, to getting Congressional reauthorization of Section 4 with beefed-up sociological data showing that the South is still a hotbed of racial discrimination to a greater degree than are other jurisdictions. See, for example, Christopher Elmendorf and Douglas Spencer, The Geography of Discrimination in Voting: MRP Meets the VRA., UC Davis Legal Studies Research Paper Series No. 339 (May 2013). at 47.)
My proposed “reporting” rules aren’t intended to diminish or reroute efforts to restore Section 4(b) VRA covered jurisdiction formulas. If anything, the proposed rules are intended to complement, but not replace, the submission process. We still need federal preemptive blocking of potentially discriminatory changes in voting procedures (e.g., in addition to voter ID and voter registration laws, the shortening of early voting windows and ending of Sunday voting, distribution of polling places based on population, physical layout of polling places, and so on).
Saving the Voting Rights Act of 1965 is a big, intimidating goal, with complicated political risks. Arguably the House of Representatives has been hijacked by extremists who have no interest in governing the country, the conservative-dominated Supreme Court has already succinctly demonstrated its bias with respect to civil rights laws, and DOJ faces having to litigate, court by court and state by state, to mitigate discriminatory election procedures.
Consider the proposed “reporting” rules as having far more modest goals. The intention here is to recreate the mechanical, or “easy,” part of the submission process while working toward other bigger and harder goals.
Why We Need Something Analogous to Section 5 of the Voting Rights Act Submissions
Section 5 of the Voting Rights Act (that is, preclearance) enabled a federal agency (the Department of Justice) to preemptively shut down state and local legislation that weakened minority voting rights. But preclearance was also a powerful statistical and data-gathering tool for policymakers and planners.
The identification of minority voting interests should be a “best practice” of legislative drafting, but such identification often isn’t done unless there is some external requirement compelling involvement and comments from protected classes of language and racial minority groups. Preclearance submissions enforced greater care in the legislative drafting process across all covered jurisdictions.
Preclearance submissions also encouraged greater awareness by lawmakers of the geographic distribution and demographics of the voting-age population in a covered jurisdiction, and not just for purposes of planning redistricting, but also for placing polling sites and scheduling early voting. Preclearance encouraged accountability to local interests and cut down on accidental errors in voting site placement, protected against the underestimation of the level of language assistance needed in a territory, and encouraged the review and remediation of architectural barriers affecting voters with disabilities.
The administrative framework of at least the reporting part of the preclearance framework has to be rebuilt. As a nation, we can either do it now (when there’s still enough institutional memory and structure to make the process slightly less painful) or we can do it later (when it will be much more expensive and painful) after the successor to Section 4 of the Voting Rights Act of 1965 (in whatever form that future law may exist) finally gets passed.
It’s also time for “non-covered jurisdictions” — that is, the jurisdictions that weren’t identified by the formula for coverage in Section 4(b) of the Voting Rights Act of 1965, and that therefore weren’t subject to the Section 5 preclearance process — to start getting used to the idea of tracking and reporting changes in voting procedures to the DOJ. The stated reasons for historical exemption of most non-Southern jurisdictions merely undercut the goals promoted by the Voting Rights Act, and contributed to the gutting of the law when the Supreme Court ruled that Section 4 of the Voting Rights Act was unconstitutional.
Cost Considerations and Administrative Burdens
It would be misleading to suggest that “reporting” detailed changes in voting procedures wouldn’t take any money or effort. Preclearance submissions were tedious, expensive, and time-consuming. When the Shelby County decision was handed down, we election attorneys were in some sense like kids who had been told that we had a snow day.
We were giddy with excitement that we wouldn’t have to go through the laborious process of tracking and submitting every change in voting procedures to the Voting Section of the Civil Rights Division of the Department of Justice. No more having to read numbing 300-page omnibus bills looking for the one section that might affect election procedures. Suddenly, rooms full of boxed manila folders were free to be used for other things. Shelby County meant no more maintenance of detailed lists of legislative materials dating back to the mid-1970s, and no more endless rounds of phone tag with legislative aides, law firms, and federal preclearance analysts. It would be fair to say we were delighted.
That was what the atmosphere felt like in the Elections Division at the Texas Secretary of State’s office, even among attorneys who were philosophically predisposed to support the Voting Rights Act. I suspect it was the mood elsewhere, given that the immediate practical effect of the verdict in Shelby County v. Holder was the dismantling of a decades-long structure of administrative guidance and office practices to support regular written submissions of detailed dossiers on changes in election procedures. Money that would otherwise have gone toward the Section 5 submission industry was saved for other uses.
I don’t doubt that Shelby County cut down on the billable hours at law firms representing political subdivisions subject to the Section 5 preclearance requirements, shifted the workload of preclearance analysts at DOJ, and cleared out file rooms across the Deep South.
For all I know, the civil servants at DOJ also treated the end of preclearance as a holiday — the administration of preclearance certainly cost money and time for DOJ as well as for the states. Analysts at DOJ would describe the Texas submissions file room (a few years ago, a DOJ analyst told me that Texas alone accounted for half of the submissions received by DOJ each year) as a cramped warren of buckling, teetering towers of cardboard boxes stacked floor to ceiling. Not surprisingly, the staff at the Voting Section of the Civil Rights Division seemed to dread the labor associated with retrieving a specific file from the unruly mess.
But just as every snow day must eventually be made up, our vacation from the mechanical tedium of tracking and reporting changes in voting procedures needs to end. It’s time to get back to work.
Despite the practical unpleasantness and cost involved, I think it is still the case that the reestablishment of some archive of procedural changes in election administration is cheaper if it’s done now, rather than later when years of legislative efforts will have to be retroactively reconstructed.
Reporting Changes in Election Procedures After June 25, 2013
As I mentioned , the Voting Rights Act of 1965 did not provide DOJ with any explicit binding rulemaking authority, and DOJ did not claim rulemaking authority in issuing various guidelines for compliance with the Voting Rights Act. In fact, the administrative procedures for Section 5 preclearance submissions were alternatives to judicial review and therefore not binding on any of the covered jurisdictions.
At least one scholar has speculated that the DOJ’s lack of formal rulemaking authority may have further undermined potential Supreme Court deference to DOJ as an executive agency, and in fact created an atmosphere of “anti-deference.” See Arpit K. Garg, A Deference Theory of Section Five (Draft as of April 1, 2012), online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2209636; Jennifer Nou, Sub-Regulating Elections (Public Law and Legal Theory No. 462, 2014) (Chicago Unbound, University of Chicago Public Law and Legal Theory Working Paper), at p. 27.
The reason why the non-binding Section 5 submission “guideline” process was so popular (accounting for well over 99% of all Section 5 preclearances) is that it was so fast and cheap compared to judicial preclearance. With Section 5 reduced to a hollow shell, DOJ now responds to any requests for preclearance with the following boilerplate language:
On June 25, 2013, the United States Supreme Court held that the coverage formula in Section 4(b) of the Voting Rights Act, 42 U.S.C. 1973b(b), as reauthorized by the Voting Rights Act Reauthorization and Amendments Act of 2006, is unconstitutional and can no longer be used as a basis for subjecting jurisdictions to preclearance under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. Shelby County v. Holder, 570 U.S. ___, 2013 WL 3184629 (U.S. June 25, 2013) (No. 12-96). Accordingly, no determination will be made under Section 5 by the Attorney General on the specified change. Procedures for the Administration of Section 5 of the Voting Rights Act, 28 C.F.R. 51.35. We further note that this is not a determination on the merits and, therefore, should not be construed as a finding regarding whether the specified change complies with any federal voting rights law.