There might be a better way- the main question I’m asking in the OP is how would minorities’ rights be protected without the VRA, if a municipality like Kilmichael decides to cancel elections, or re-district such that all the black voters are in the same district, or enact other laws with the pretty clear intent of lessening the voting power of black people.
“Bailing out” of preclearance is quite difficult. It took New Hampshire of all places almost ten years to be allowed to file suit in 2010 to bail out its ten counties covered under the VRA, after another two years, the suit was successful. And N.H. only had 10 counties affected, imagine the hurdles for states where every county is included. Further, the covered states tend to be poor ones, with few resources to spare for federal lawsuits.
Couldn’t they appeal to their state Election Commission / Board of Elections / Division of Elections?
I am not necessarily in favor of the law as written. However, it’s important to note that failure to lift the preclearance requirement generally means the DOJ has found some reason not to.
As far as the resources issue goes, there are any number of organizations willing to help out a poor county for what it perceives as the greater good. For example, the Shelby County challenge currently before SCOTUS is being bankrolled by the right-wing “charity” Donors Trust, via the Project on Fair Representation.
Sure, and over time, if the VRA stands, more and more jurisdictions will be bailed out. I just think it should be recognized that there are other factors than continued VRA violations at work in explaining why so many jurisdictions have not bailed out: inertia, lack of resources, and an onerous, time-consuming legal process.
There’s some hubbub in liberal circles over Scalia calling the VRA the “perpetuation of a racial entitlement” in oral arguments. Supposedly there was shock in the gallery upon this pronouncement, but I sorta take this report with a grain of salt.
Still, as a general rule I’d rather place undue burdens on some governments than risk having undue burdens placed back on some voters.
I’d be more than willing to grant the same entitlement to Justice Scalia - as long as he is willing to meet the eligibility requirement and lose his vote for a hundred years first.
Exactly. How much of an inconvenience is it for these local governments anyway?
Even if there’s a little overkill in the restrictions, if we can unconstitutionally restrict the rights of individuals in order to protect the state from terrorism, then surely we can put the relatively minor restriction of preclearance on local governments in order to protect the very basis of our Democracy.
That’s fine unless it’s your government that’s burdened, and stigmatized as racially discriminatory because of policies in place in 1964. Then, it stings a little.
Then amend the VRA to apply to all jurisdictions in the United States, if you want its protections to apply to everyone. Don’t single out a handful of them because of what was done 49 years ago.
Which changes nothing in what I said. I rather the government had its feelings hurt than people.
It does apply to all jurisdictions. It’s just that most jurisdictions haven’t triggered its effects.
It’s not just the actual local bureaucrats, it’s a stigma for the entire state / township / county and its residents.
I was referring to preclearance specifically. It was applied to jurisdictions based on the November 1964 election. The “covered jurisdictions” then face a lengthy and difficult process of “bailing out” of preclearance. If preclearance has such undeniable and universal value, then why not remove the statute tying it to the 1964 election, and make all jurisdictions preclear?
As I said, though, things are looking up. New Hampshire just bailed out entirely in December of 2012, and Northwest Austin Municipal Utility District No. 1 v. Holder in 2009 made it possible for more political subdivisions, such as a utility district, to bail out.
That ruling also noted that (as of 2009) “since 1982, only 17 jurisdictions—out of the more than 12,000 covered political subdivisions—have successfully bailed out of the Act.” This is evidence that bailing out is too difficult.
Or that preclearance jurisdictions are still disenfranchising minority voters. Those questions are best left to the legislature.
This seems completely reasonable.
Stripped of all the niceties, the concentration on the Usual Suspects was punitive (and totally deserved). But there should be a statute of limitations on regional stupidity. Extend it to everyone. There are probably still bad apples among the slave states, but (1) not all, and (2) not exclusively.
Has this been argued legally, or is all the effort just to duck out of the requirements?
I’m not saying that never happens, but in 11,983 of 12,000 jurisdictions? Seems far-fetched.
Bailing out of preclearance is actually handled by the District Court for the District of Columbia, or the Attorney General. The legislature is not involved.
Here’s the bailout requirements:
No, I mean the question of whether the preclearance procedure is still necessary is best left to the legislature. As in, if you want to get rid of it, go ask Congress.
Right, but SCOTUS can’t overturn the VRA on those grounds. They can overturn the individual DOJ and DC Circuit decisions.
So, that crosses off every state with voter suppression measures, for starters…
Really, there can be no harm in applying all those requirements across everyone. It seems to me that the threats to Voting Rights now no longer exclusively emanate from the south and we should guard against them everywhere.
Sorry, Pennsylvania.
There was, section 5 of the VRA (the preclearance part) was set to expire after five years. However, “Congress reauthorized the Act in 1970 (for 5 years), 1975 (for 7 years), and 1982 (for 25 years); each reauthorization was litigated as unconstitutional, and each time the Supreme Court upheld its constitutionality. Most recently, in 2006, Congress extended §5 for yet another 25 years.”
A temporary measure has been extended beyond the point of reason.
Also, the “slave states”? That would include Maryland, New York, New Jersey, and Delaware, you know.
The most recent case that reached SCOTUS and has been ruled on that I’m aware of is Northwest Austin Municipal Utility District No. 1 v. Holder, in which the Court declined to rule upon the Constitutionality of Section 5 of the VRA.
Oh, sorry, I misunderstood you. Congress just extended the VRA for another 25 years in 2006, so that’s not a favorable sign.
They could overturn section 5 as being unconstitutional, Clarence Thomas’ dissent in Northwest Austin Municipal Utility District No. 1 v. Holder argued exactly that.
And had New York, New Jersey or Delaware used prohibited methods of disenfranchisement, they could have been added to the list of covered jurisdictions under the procedure described in Section 2 of the Act.
Right, but they can’t do it just because almost nobody has bailed out. They can do it because Congress did not reauthorize the act on the basis of an existing record of minority disenfranchisement, as is being argued here, since the 14th Amendment doesn’t give Congress prophylactic power.
Every jurisdiction is covered by voting rights laws. No one can have a poll tax or a literacy test, for example. The preclearance restriction is there to protect voters in areas that have historically attempted to suppress them. We can’t assume that a local culture has changed simply because some arbitrary amount of time has passed. Prejudices can be passed from generation to generation. Jurisdictions can bail out by showing good behavior for 10 years.
Who should the government be more concerned about, those whose franchise may be at risk or those who feel a little sting? Some hurt feelings may simply be the price that has to be payed in order to keep us from back sliding on this. I’m pretty sure that those who couldn’t vote felt more than just a little sting.
I’ll add that I believe that it’s more than just a coincidence that it’s mostly Republicans who are fighting the VRA while at the same time doing things like instituting voter ID laws and shortening early voting times throughout the country. Does anyone believe that they won’t attempt to institute those things in the currently protected jurisdictions if preclearance is overturned?