Saturday, October 19, 2013

Practical effects of the Supreme Court's voting rights ruling

SignVoterReg(This article appeared originally on Virginia Politics on Demand on June 25, 2013.)

Coby Dillard has already summarized what the U.S. Supreme Court did, and did not, do in its ruling Tuesday morning in the case of Shelby County, Alabama v. Holder, Attorney General, in striking parts of the Voting Rights Act of 1965 (as reauthorized by Congress in 2006).

What I would like to explain is what practical effect this will have on voting in the Commonwealth of Virginia, one of the nine states covered under Section 5 of the Voting Rights Act, requiring pre-clearance by the U.S. Department of Justice for virtually all legal and regulatory changes in voting procedures and elections.

With a few exceptions, all counties and cities in Virginia must seek permission from the federal government before making any changes in the way they conduct elections. The most recent exception is Hanover County, which was "bailed out" of the pre-clearance requirement, as explained in a news release posted by the Department of Justice on Monday:

The Justice Department announced today that it has reached an agreement with Hanover County, Va., that will allow for the county, a covered jurisdiction under the special provisions of the Voting Rights Act, to bail out from coverage under these provisions. Bailout will exempt Hanover County, along with the town of Ashland, from the preclearance requirements of Section 5 of the Voting Rights Act. The agreement is in the form of a consent decree filed today in the U.S. District Court for the District of Columbia and must be approved by the court....

“In the department’s view, the county has met the requirements necessary for bailout. We reached this conclusion after thoroughly reviewing information provided by the county as well as information gathered during the Department’s independent investigation,” said Matthew Colangelo, Deputy Assistant Attorney General for the Civil Rights Division. “We appreciate the county’s cooperation in the resolution of this matter.”
The bail-out process has always been an option for localities covered by Section 5 of the Voting Rights Act, but it is expensive and time-consuming and requires the attention of numerous officials from the Electoral Board to the city or county attorney. The Electoral Board in Charlottesville (on which I serve) has considered applying for a bail-out several times over the past few years, but the expense -- the equivalent cost of a general election, or more -- plus the fact there was no guarantee of success deterred us from initiating the process.

That said, a Huffington Post headline today -- "The Last Voting Rights Act Bailout Ever Went To Hanover County, Va." -- suggests that the bail-out question is moot, unless Congress comes up with a formula that meets constitutional muster and restores Section 4 of the Voting Rights Act, so that the pre-clearance provisions of Section 5 can again be implemented.

On a practical level, ending the pre-clearance requirements will make it much easier for election officials in Virginia to do their jobs. While much attention has been paid to how the Supreme Court's ruling affects things like congressional and other legislative redistricting or statewide voter ID laws, the ripples of Shelby County v. Holder will be felt in countless tiny ways on topics that seldom make the headlines.

For instance, every time a polling place is moved from one location to another, Section 5 of the Voting Rights Act required us to seek permission from the Justice Department, a process that had to be approved at least 30 days prior to the move's taking effect. (In reality, permission had to be granted even earlier, because of the cascade of tasks that must be completed before election day, including the commencement of absentee voting, sending out voter registration cards with new information, posting advertisements in newspapers alerting voters about the changes, etc.)

To give you a sense of how detailed this pre-clearance process could be, consider this example. Some Charlottesville voters currently cast their ballots in the cafeteria of Johnson Elementary School. If we needed to move the voting location to the school's library down the hall, we would need Justice Department pre-clearance.

Buying new voting machines, making technical adjustments to precinct boundaries, moving the office of the General Registrar -- all these had required pre-clearance by the U.S. Department of Justice.

Each of those items required action by the Electoral Board, the General Registrar, the City Attorney, and (in most cases) City Council. They took time and energy away from other tasks that need to be done to assure fair, transparent, honest, and efficiently-run elections.

I will leave to others to debate the political implications of the Supreme Court's decision Tuesday. As for the practical effects, the Court has removed a tremendous burden -- some might even say nuisance -- from the shoulders of election officials across the country. For that we can be grateful.

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