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Monday, December 10, 2012

The Bizarre Opposition to New Hampshire's Voting Rights Act Bailout Suit

The Center for Individual Rights is a highly regarded and effective conservative public interest firm.  For a number of years, one of CIR’s causes has been to challenge the constitutionality of Section 5 of the Voting Rights Act.  Section 5, of course, is the preclearance provision.  It prohibits certain “covered jurisdictions” with a history of voting discrimination from making changes in their voting practices without first showing federal officials that the changes aren’t discriminatory in purpose or effect.  Sixteen states are covered jurisdictions in whole or in part.  They are mostly, but not entirely, states in the South.

In a petition for certiorari it filed this past July, CIR argued that “any delay” in eliminating Section 5 “is intolerable for the millions of citizens of covered state and local jurisdictions who are currently being deprived of their freedom to exercise a voice in shaping the destiny of their own times without having to rely upon the processes that control a remote central power.”  (I’ve omitted internal quotation marks and a citation.)  CIR argued that Section 5’s continuing existence created an “ongoing loss of [those citizens’] basic right to self-governance” that “is especially troubling given the perversely aggressive and onerous manner in which Section 5 has recently be[en] applied.”  (The Court did not grant that petition, but it did agree to consider Section 5’s constitutionality in Shelby County v. Holder, which will be argued later this Term.) 

In light of that position, strongly expressed by CIR just this past July, I found it somewhat bizarre to see that last week CIR filed a motion to intervene to oppose an effort by New Hampshire (which has 10 covered townships) to “bail out” from Section 5.  (The Voting Rights Act has always provided a method for covered jurisdictions to bail out by satisfying certain criteria designed to demonstrate that preclearance is no longer necessary for a given jurisdiction.)  And even more bizarre was the rationale the motion offered for intervening:  CIR’s client, who appears to be a Republican Party activist in New Hampshire, “receives the benefit of the special remedial provisions of the Voting Rights Act because every statewide law effecting any change in voting in any of the Covered Towns must be ‘precleared’ under Section 5 by either the Attorney General of the United States or [the D.C. District] Court.  * * *.  Movant wants to continue to receive the benefit of such review and, accordingly, has an interest in ensuring that New Hampshire’s statewide election laws continue to be subjected to that review.” 

So wait a minute:  What was, in July, an “intolerable” deprivation of the “freedom” of citizens in states like New Hampshire “to exercise a voice in shaping the destiny of their own times without having to rely upon the processes that control a remote central power”—a deprivation that had been applied in a “perversely aggressive and onerous manner” and that CIR wanted to end as soon as possible—is, just five months later, a “benefit” to those same citizens that must be continued?  Forgive the snapping of heads. 

Here’s what I think is really going on.  When the Supreme Court last considered (and ultimately ducked) the constitutionality of Section 5 in the Northwest Austin case, the argument that seemed to get the strongest traction for the challengers was that the statute’s coverage was outdated.  The argument ran, in part, like this: although the statute originally may have covered the jurisdictions in which voting discrimination was the biggest threat, things had gotten sufficiently better in at least some of the covered jurisdictions that preclearance was no longer necessary there. 

The Voting Rights Act’s bailout provision is an obvious way to help tailor the preclearance requirement’s coverage to current conditions.  If the Department of Justice and the courts allow individual jurisdictions to bail out once the preclearance requirement is no longer necessary in those jurisdictions, they can eliminate or substantially reduce what many seem to think is the present-day overinclusiveness of the statute’s coverage formula.  And, indeed, the Northwest Austin Court seemed to recognize this precise point when it held that “underlying constitutional concerns compel[led] a broader reading of the bailout provision” than was apparent from that provision’s plain text.

So here’s my sense of what’s driving CIR’s bizarre New Hampshire pleading: With Shelby County now before the Court, Section 5’s opponents want desperately to show that bailout is not an effective way of tailoring the statute to current problems.  If the entire State of New Hampshire can bail out, that is a significant blow to their argument.  Thus, they want to block New Hampshire from bailing out.  Not incidentally, they want to cast doubt on the legitimacy of the wave of bailouts that the Department of Justice agreed to after Northwest Austin made clear that the bailout provision should be interpreted more broadly. 

But they have a problem.  The Department of Justice really has taken seriously the Supreme Court’s suggestion in Northwest Austin that bailouts are an essential means of tailoring the current coverage of Section 5.  For the statute’s opponents to argue that its coverage is intolerably broad and imposes substantial costs on covered jurisdictions, then to turn around and argue that a state like New Hampshire should be forced to remain covered even if DOJ believes that the bailout criteria are satisfied, is really too cute by half.  Does CIR really believe that New Hampshire should be required to submit to preclearance of its voting changes?  I kind of doubt it.  But it sure would be helpful to a constitutional challenge to the statute if CIR could keep the state from bailing out.

(I should disclose that, while serving as Principal Deputy Assistant Attorney General for Civil Rights at DOJ until mid-2011, I had at least some involvement with almost every substantive issue that the Civil Rights Division addressed, including the issues I’m discussing here.  In particular, as the reviewer of the Division’s Appellate Section, I argued Shelby County in the district court and supervised the briefing in CIR’s earlier challenge to Section 5, LaRoque v. Holder.)

Posted by Sam Bagenstos on December 10, 2012 at 10:20 AM in Constitutional thoughts | Permalink


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Wow, this post has really brought out the trolls, from those who look for their voting rights analysis to the totally discredited "fraudulent fraud squad" pundit Hans van Spakovsky (whom even the National Review really ought to be embarrassed to be publishing in 2012), to those who apparently have no contributions of their own to add to the thread other than multiple new spellings of the word "bizarre," yet feel totally equipped to accuse the author of dishonesty.

It's always interesting and a little tricky to predict which blog posts are going to bring out this sort of comment. If this one is any indication, it's going to be a rocky six months between now and when Shelby County v. Holder is decided. Hang on to your hats.

Posted by: anon | Dec 10, 2012 11:44:23 PM

The author of this post calls names. "Bizare." I think it is the author who is bizzare. According to the link posted in the comments, the DOJ voting section is up to trickery and if the author was a bit honest, he would admit it. But he isn't.

Posted by: Charlie Crispy | Dec 10, 2012 4:23:44 PM

Very important blog post. The stench of hypocrisy in the briefs from CIR is overwhelming, but ultimately not that important: the important issue is how the Supreme Court will view the bailout provision -- expanded by its own decision in NAMUDNO -- as a means of tailoring the Act's coverage formula.

There hasn't been a lot of discussion about this, but is there any way for the Court to rule in the Shelby County case besides either upholding Section 5 entirely or striking it down entirely? In particular, is there anything the Court could do to further clarify the availability of bailout, etc., as a means of making the formula do the work of federalism and/or state "dignity" that Justice Kennedy wants it to do?

Posted by: Joey | Dec 10, 2012 2:59:02 PM

Question CIR's motives all you want, but do you have any argument at all for how NH can bail-out given its repeated and numerous violations of the Section 5 preclearance obligation, given that 10-year compliance with Section 5 is a necessary and unambiguous condition for bailout under 42 usc 1973b(a)(1)(D)?

As for motives, incidentally, you seem to be just fine with the NAACP and the Voting Rights Section throwing minorities in NH under the bus in order to try to save Section 5 in the covered jurisdictions. That seems far more inconsistent with their mission than CIR representing an individual who benefits from a statute that they've previously challenged.

Posted by: Hash | Dec 10, 2012 1:37:56 PM

It may also have to do with the fact that the Obama/Holder DOJ is playing politics with the bailout, ignoring and specifically disregarding the requirement that an area seeking bailout have a "clear record" for at least 10 years, something none of the towns have. What they do have is a history of voting Democrat, so the Obama/Holder DOJ is ignoring the law and giving them a hand.


Posted by: John Templeton | Dec 10, 2012 12:27:08 PM

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