- The Washington Times - Thursday, June 11, 2009

ANALYSIS/OPINION:

COMMENTARY:

Is racism still so virulent that the Justice Department needs to run elections in the South? The Justice Department thinks so. That’s why they’ve asked the Supreme Court to uphold Section 5 of the Voting Rights Act - a “temporary/emergency” provision that is now 44 years old.

Section 5 requires a small number of (mostly Southern) states and localities to get Justice Department approval of any change they want to make in the election process. For example, if local election officials want to change a polling location from the old high school to the new one, they must get approval from Washington. And, in applying for the change, they must prove the change will have no discriminatory effect - a one-of-a-kind standard.

In April in Northwest Austin Municipal Utility District Number One v. Holder, Justice Department lawyers argued that Section 5 is still necessary because the department’s Civil Rights Division had lodged more than 750 “objections” (representing some 2,400 changes sought by elections officials) since 1982.

Somehow, that is supposed to negate the obvious advances made in the last quarter-century and more: the election of President Obama, the extraordinary increase in minority voter registration throughout the South, and the inspiring electoral successes of minority candidates across the old Confederacy. Taking to heart Daniel Patrick Moynihan’s aphorism that one is entitled to his own opinion but not his own facts, let’s look at the real numbers.

For starters, the number of objections cited appears to be inflated by nearly 20 percent. The division’s own public Web site lists just 604 objections since the VRA was formally reauthorized on June 29, 1982. More important, these objections represent a tiny fraction of the total number of voting changes submitted. The division’s Web site reports 422,846 changes were submitted between 1983 and 2007. Even taking the obviously inflated figure of 2,400 changes at face value, the objection rate is a mere 0.45 percent.

And things look even better over time. From 1995 to 2005, there were only 71 objections out of 49,429 submissions. And that number is overstated because the Supreme Court found some of the objections to be entirely unwarranted. As a result, the effective objection rate was an infinitesimal 0.14 percent. Exactly how small does this number have to get before the Constitution - the supposed beacon of racial equality - finally puts a halt to not only the extraordinary intrusions on state and local sovereignty, but also the antiquated insistence by political demagogues (of both stripes) that race must be the predominant factor in electoral legislation in the South?

The Section 5 objection rate has been plummeting for decades and will continue to do so. In fact, the primary reason that the number was as “high” as it was in the 1980s and 1990s was because the division consistently misapplied Section 5 and afforded it far greater breadth than the terms of the statute permitted. For example:

In 1997, the Supreme Court held (in Reno v. Bossier Parish I) that the division inappropriately interposed objections just because a submitted voting change did not maximize electoral opportunities for minority candidates. The correct test was simply whether the voting change had a retrogressive impact on a minority group’s opportunity to elect its candidate of choice.

In 2000, the court rebuked the division (in Reno v. Bossier Parish II) for improperly objecting to voting changes that indisputably had no retrogressive impact.

In 2003, the court again repudiated the division’s position (in Georgia v. Ashcroft), holding that Section 5 does not require state legislators to focus only on maximizing safe minority seats when redistricting.

Last year, Justice Ruth Bader Ginsburg led a unanimous court in overturning another invalid objection made by the division in Alabama.

Had the division correctly enforced Section 5 instead of playing a 10-year game of cat-and-mouse with the Supreme Court, the total number of objections in recent years could probably be counted on two hands.

Claims that these few objections provide evidence of continued “intentional” discrimination are completely bogus. The division has never had to show “intentional” discrimination. Instead, the legal standard allows the division to object if it believes a change may cause retrogression, effectively a “disparate impact” test. That allows a very subjective analysis open to widely varying interpretation.

I have known division lawyers to recommend VRA lawsuits based on cloudy analyses that a local redistricting plan made it impossible for black candidates to win elections. Twice I saw them withdraw their recommendation after black candidates won the very next election.

Unjustified objections aren’t the only way in which the division obstructs voting changes that pass legal muster but not the ideological preferences of career attorneys. Another way to frustrate change is simply to request additional information from the submitting jurisdiction.

When a state or municipality submits a voting change for pre-clearance, the division has 60 days to complete its review. But this time can be extended simply by sending a letter to the submitting jurisdiction saying the division does not have enough information to complete its review. So, send a letter and - presto! - the 60-day time period is stayed until the additional information has been received.

I frequently saw career attorneys demand a voluminous amount of additional (and often irrelevant) materials, hoping the highly burdensome request would discourage the jurisdiction from continuing its submission. In many instances it worked; jurisdictions would withdraw their submissions to avoid the hassle, thus voiding the voting change.

Perversely, the counsel for the National Association for the Advancement of Colored People argued that such withdrawals were evidence of “intentional discrimination” by the jurisdictions. The claim is completely unjustified.

The “evidence” of continued need for Section 5 turns into moonshine when examined closely. Happily, the Supreme Court can put an end to this nonsense and restore the constitutional balance to voting matters in the South in its decision next month.

Hans A. von Spakovsky, a visiting legal scholar at the Heritage Foundation (www.heritage.org), is a former member of the Federal Election Commission and a former counsel in the Civil Rights Division.

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