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The Voting Rights Act: A One-Way Partisan Ratchet?


The Voting Rights Act of 1965 is the crown jewel of both election and civil rights law. Measured by stated intentions and actual results, the VRA is also one of the very best laws ever devised. Nevertheless, the VRA’s unquestioned success at achieving noble ends should not shield it from consistent and searching inquiry into its partisan implications. Broadly stated, the VRA is an election law, which, for partisans, can be the Devil’s Playground.

The latest round of redistricting offers strong evidence that the 2006 Voting Rights Act Reauthorization Act (“VRARA”) has forged a weld with partisan interests. To be sure, groaning over the partisan consequences of the VRA is old sport.  Some Democrats (and scholars) blamed the VRA and the Bush I DOJ for the GOP takeover of Congress in 1994. I concede that lawmakers will continually shape and reshape the VRA to match their partisan desires. My critique is different: we have reached a point where the success of the law and the success of a political party are seen as one. 


As interpreted and enforced, the VRARA conflates the political strength of the Democratic Party with the voting strength of minority communities. In other words, a law’s possible effect on racial and language minorities is weighed by the law’s possible effect on the electoral chances and power of Democrats. Laws that Republicans pass to (potentially) hinder Democrats are also laws that Republicans pass to (potentially) hinder minority voting strength and political The VRARA directly bars the latter, indirectly barring the former too.


 That is not surprising. Racial and language minorities (with a few notable exceptions) overwhelmingly associate with and support the Democratic Party. Party and community interests align in many ways.


 It is also not entirely unprecedented (or per se nefarious) for lawmakers to tether partisan success to voting and election laws.  Many Reconstruction laws protected minority and Republican voters at the same time. But we should be honest about the partisan goals or implications of the VRARA.


 REDISTRICTING RULES


Pursuant to the VRARA, lawmakers in Section 5 jurisdictions must redistrict in a way that explicitly favors Democrats. The lawmakers must create as many minority-majority districts as it can, while also taking care not to disassemble any districts that minority voters play a large role in electing the candidate. Stated differently, new Democratic minority-majority districts must be drawn, if possible, and old Democratic minority-majority, influence, cross-over, and coalition districts must be preserved.  This gives Democrats a certain permanent baseline number of districts. More is acceptable; less is forbidden.  


The partisan implications are obvious. Illinois Democrats can do to Illinois Republicans what Texas Republicans cannot do to Texas Democrats.


 Fortunately, the United States Supreme Court in Bartlett v. Strickland rejected a similar attempt to give Section 2 of the VRARA the same built-in partisan baseline.


 My hunch is that a thorough review of the latest redistricting will show that the VRARA has become a largely partisan tool. In states with Democratic control, the VRARA likely played little role in restricting lawmakers. Lawmakers in Republican-controlled states, however, probably felt (or were forced to feel) the VRARA’s tight reins 


I saw this firsthand in Nevada. I represented a Hispanic group loosely affiliated with the state GOP’s efforts to maximize the number of minority-majority Hispanic districts. The Democrats controlled both houses of the Legislature, but we had a Republican (Hispanic) Governor.  The two sides reached no agreement, and we went to court.


The Democrats attempted to maximize the number of Hispanic “influence” districts, which also maximized the number of Democratic districts.  Republicans believed that the VRARA and traditional districting principles mandated the creation of additional minority-majority districts.  Democrats cried foul.  To them, the VRARA had no role in Nevada. They castigated GOP lawmakers as proponents of racial gerrymandering who used the VRARA as pretext for partisan racism. Tellingly, civil rights groups remained apart, taking no side. 


In the end, the Court districts largely sided with the Democratic arguments about the requirements of the VRARA, even if the resulting districts differed sharply from what the Democrats wanted. The Court created no new majority-minority districts, and it dismantled those that already existed. Every single district that had an elected Hispanic representative saw a drop in the Hispanic voting age population. One Hispanic legislator was likely drawn out of his district.


 The Court was able to do this because it found that racially polarized voting did not exist in Nevada. As such, there could be no Section 2 claim under the VRARA.  Democrats had strongly argued for both results.


There is no chance that Republicans in Texas could have done what Democrats in Nevada tried to do to the Hispanic population.


 


SO WHAT?


The VRA now has obvious partisan implications. While I fervently believe equating partisan success with minority voting rights and power is bad law, I can’t say that the position is crazy or that the result is unexpected.  


 Trying to completely excise the VRARA from partisan politics would be naive. But we should not lie about the law. We do not defile the VRA by admitting the reality of how it operates. Rather than hide the ball, we should embrace the debate. If the law’s partisan realities make it less popular or more constitutionally suspect, so be it. We are all better off with an open debate. 

Inspector General says DOD, FVAP failed to implement MOVE Act registration offices

In a report released yesterday, the DOD Inspector General goes after the Federal Voting Assistance Program (FVAP) on multiple fronts, including the finding of a failure to comply with the MOVE Act by not establishing voter registration offices at military installations.  In a nutshell, DOD is only about halfway through the job, three years after the passage of the MOVE Act.

First, we have DOJ failing to enforce the MOVE Act until the fiasco of 2010.  Now, with less than 70 days to the Presidential election and military voting participation rates plummeting, this IG report criticizes FVAP and DOD for not complying with the most significant military voting legislation in 20 years.  This report is going to send shock waves throughout the political and elections arena.  Politico predicts a nasty showdown between House Republicans and the Obama Administration on the delay and foot-dragging in implementing the registration part of the MOVE Act.  ELC predicts more of a bipartisan outcry from the Congress.

Questions to ponder:  When has the Obama Administration ever laid down on the job on requiring full compliance with voter registration laws at public assistance or DMV offices in any number of states that have been sued?  Why is it that military voter registration offices get short thrift under the watch of the Obama Administration? 

Much of the focus on the MOVE Act has been with how the states comply with law; however, the IG report reveals that the DOD is failing to comply in even more significant ways than the states and DOJ lifts not a finger.  ELC will continue to investigate who made the decision inside DOD and FVAP to ignore the Congress and slow walk the implementation of these installation voting registration offices prior to the 2012 General Election.

Texas will appeal flawed voter ID ruling to Supreme Court

Fox News reports that Texas Attorney General Greg Abbott, who is in Tampa for the Republican
National Convention, called the ruling “deeply disappointing.” He said
the state is trying to prevent “fraudulent voting,” claiming, for
example, that hundreds of dead people were listed as voting in the
state’s recent primary.  “This is actually a national trend, where states are trying to do a
better job of securing the integrity of the ballot boxes, and yet courts
(are) pushing back against that, seemingly promoting and allowing
illegal voters to participate in the election process,” Abbott said.   …The panel, in the Texas case, unanimously ruled that the law imposes
“strict, unforgiving burdens on the poor,” who are often racial
minorities.

The ruling by the self-proclaimed “inferior court” rests on the fact that “the poor” will have to travel to the DMV to get a free photo ID and because “the poor” in certain areas of Texas have to travel longer distances than the “non-poor” and accordingly may spend more gas money on the trip.  Of course, the detractors of Texas voter ID still have no actual impacted victim to place on the stand but the speculation was enough for this court.  Of course, “the poor” are not a class protected by the Voting Rights Act (VRA) but the federal court improperly bootstrapped the Hispanic population into the new class of “the poor” in rural Texas.  The court ignored the fact that if a member of the now-protected class of “poor persons” is driving to the DMV and spending more money on gas, then they should already have a valid photo drivers license which they can use for photo ID at the polls.

ELC will have more on how the federal panel improperly parsed the words of the Supreme Court in coming to its flawed decision in the Texas Voter ID case.  The panel found no intentional discrimination and was only able to come to its conclusion by improperly throwing out valid and substantive evidence that photo ID laws have increased turnout in Indiana and Georgia in past elections.  This will be a easy flip for the Supreme Court, much easier than dealing with the larger issues of Section 5. 

Daily Caller on Holder and Thin Skin

Matt Boyle at the Daily Caller has this piece.

“Holder also reportedly scolded  an intern for Republican Rep. Kevin McCarthy for taking notes during a lecture he gave recently, and snapped at Republican Rep. John Culberson last year for questioning the attorney general about the New Black Panther Party voter intimidation case in a congressional hearing, which he said demeaned “my people.”


Holder has been criticized for what his detractors say is an inability to handle criticism. Former George W. Bush speechwriter and Center for Individual Freedom senior fellow Troy Senik, for example, argued in an editorial for TheDC earlier this year that Holder is unable to accept accept a theory or argument different than his own, and has a tendency to see criticisms of his performance as racially motivated.


“This is the controlling thesis — perhaps the only thesis — that occupies Eric Holder’s mind: any public policy he disfavors can’t be motivated by honest disagreements about first principles or empirical realities; it must be the product of prejudices buried deep within the subconsciousness of its proponents,” Senik wrote.


In December 2011, Holder accused his critics of racial motivations in an interview with The New York Times.”

PJ Media recently had a similar piece on thin skin.

With voter ID law, minority turnout goes up in Georgia

Atlanta Journal Constitution reports:  When Georgia became one of the first states in the nation to demand a photo ID at the ballot box, both sides served up dire predictions. Opponents labeled it a Jim Crow-era tactic that would suppress the minority vote. Supporters insisted it was needed to combat fraud that imperiled the integrity of the elections process.

But both claims were overblown, according to a review of by The Atlanta Journal-Constitution of statewide voting patterns in the five years since the law took effect.

Turnout among black and Hispanic voters increased from 2006 to 2010, dramatically outpacing population growth for those groups over the same period.

Alabama state GOP leaders say voter fraud is alive and well

Top lawmakers in the Alabama Legislature said Thursday that more
people voting in the Uniontown municipal election than there are voting
age people is a prime example of why the state needs to fight voter
fraud.

…About
125 percent of the voting age population in the town voted on Tuesday
and 45 percent of those who voted did so through an absentee ballot,
although the state average for voting absentee is 3 percent to 5
percent, according to the News report. 

Waggoner,
R-Vestavia Hills, said he doubts the situation was an “isolated
mistake” and “serves as a glowing example to any naysayers that voter
fraud is real.” 

Link to full story.

Minnesota voter ID amendment heads to November ballot “as is”

The Republican-controlled state Legislature
enjoyed two major victories last week as the Minnesota Supreme Court
ruled to keep the Legislature’s titles and questions on the ballot for
the voter ID and marriage amendment questions.  Amendment supporters were pleased with the outcome while opponents
reiterated concerns that the question and title wording could mislead
voters.  Title changes and lawsuits over the summer left the ballot wording in
flux for the highly controversial proposed constitutional amendments.  Link to full story