Too Much for Toobin: Does Jeffrey Toobin Understand the Voting Rights Act?

Jeffrey Toobin’s recent piece in the New Yorker has me scratching my head.

It’s not that it’s a predictive piece akin to his infamous prediction after watching oral argument in NFIB v. Sebelius, “This law looks like it’s going to be struck down.” It’s that the hyperbole attendant to an examination of the Voting Rights Act of 1965 (“VRA”) gives me pause.

The background: In 2009, the Supreme Court handed down its decision in NAMUDNO v. Holder. Eight justices signed an opinion expressing serious concern about the constitutionality of Section 5 of the VRA, which requires certain “covered” states and jurisdictions to “preclear” all voting rules with the Department of Justice or a federal court. (The ninth justice found Section 5 unconstitutional.) The problem: Congress last updated the formula defining covered jurisdictions in 1972, and renewed VRA in 2006 to extend through 2031. The Court avoided the hard question last time but will hear argument in Shelby County v. Holder February 27 to address squarely the constitutional issue.

Mr. Toobin is worried that the Court may strike it down, which is an entirely legitimate worry. The concern with the piece, however, is that it is less than a model of clarity or precision.

Perhaps it’s the erroneous statements. For instance, Mr. Toobin reports that the VRA “abolished” the use of poll taxes, which is inaccurate: Section 10 of the Act allowed the Attorney General to institute lawsuits to challenge poll taxes, but Congress was uncertain it could legislatively abolish poll taxes, as it took a constitutional amendment to abolish it in federal elections. It was the Supreme Court’s decision in Harper v. Virginia  State Bd. of Elections that abolished the use of poll taxes. But he’s in good company, I suppose: Wikipedia makes a similar error.

Or maybe it’s misstating research. Mr. Toobin cites a study for the proposition that “in central Florida alone, long lines, exacerbated by a law that reduced the number of days for early voting, discouraged about fifty thousand people, most of them Democrats, from casting ballots.” Except, that’s not accurate. Professor Theodore Allen at the Ohio State University found that lengthy ballots were responsible for long voting lines. (Check out a sample ballot from Osceola County, where 17 elected officials, 12 constitutional amendments, and a county charter amendment on a bilingual ballot took up seven pages.)

It is, of course, true that if more people vote early, Election Day turnout is lower; and if Election Day turnout is lower, then long lines are less likely. But Mr. Toobin also misleads on Florida’s early voting cuts. Florida law reduced the number of early voting days from 14 to eight—except that the Department of Justice, under Section 5, precleared in covered counties a reduction from 14 days to 12. Additionally, in those covered counties and others (32 of 67 statewide), there were 96 hours of early voting, an identical number as 2008. Yes, there were fewer days, but in many places there were the same number of early-voting hours; and fewer days did not necessarily “exacerbate” the long lines.

Then there’s this statement: “The Department of Justice and the federal courts used Section 5 to block initiatives in Florida, South Carolina, and Texas. Had the courts failed to take such action, according to the Brennan Center for Justice, as many as five million votes might have been lost, which was, as it happens, almost exactly Obama’s popular-vote margin over Romney.”

Oh, where to begin.

First, the Brennan Center estimated in 2011 that, at the time, at least 19 laws and two executive actions may make it “significantly harder” for more than five million eligible voters to vote (which Mr. Toobin characterizes as “might have been lost”).

Second, the five million figure wasn’t just about laws in Florida, South Carolina, and Texas. The figure included the effect of laws in 11 other states. The three of those 21 voting regulations limited under Section 5 were Florida’s early voting restrictions in five counties, and voter identification laws in Texas and South Carolina.

Third, a host of factors apart from Section 5, including citizen initiatives, alternative legal challenges, legislative repeals, and gubernatorial vetoes rendered that five-million-vote claim moot. And, of course, political party operatives adapted (often admirably) to new rules.

Fourth, it’s an extraordinarily misleading claim to note that “it happens” that the total number of votes lost equals Mr. Obama’s popular vote margin. Not all votes lost would belong to one party, even if those lost votes disproportionately belong to one party. Regardless, it’s difficult to say that the loss of popular votes in Texas or South Carolina would affect Mr. Obama’s odds in any meaningful sense, because the Electoral College still votes for the president.

Mr. Toobin’s closing lines are dire: “[T]he South is no longer all that different from the rest of the country. But that’s not so much because the South is now better—the open racism of the years before 1965 is gone—as because the rest of the country is now worse.”

Really? In 1966, the gap between white voter turnout and black voter turnout was 15 points; in 2012, black voter turnout exceeded white voter turnout. There may be other problems with our democracy in the last 50 years, such as a decline in overall voter turnout rates. But, it’s hardly the case to say that the country today is in worse shape 50 years after the VRA, particularly in the arena that the VRA targeted—racial disparity in voter registration and turnout.

Which is all a very long-winded way of saying, as the voting wars heat up (to borrow the title from Rick Hasen’s excellent work), it may benefit us to have cooler heads. There are good arguments why Section 5 may not be facially unconstitutional, as excellent work from Franita Tolson argues. Or, even if it’s struck down, there are important things Congress may do to replace it. Or, maybe it’s not that significant a loss if struck down. But, unsubstantiated outrage and hyperbole may not help move the ball.