December 4, 2012
By Hans A. von Spakovsky
The Justice Department is acting in a highly unusual, and likely unlawful, manner in New Hampshire. Once again, it’s a Voting Rights Act case. This time, shenanigans by DOJ’s Civil Rights Division in New Hampshire appear to be designed to influence the Supreme Court when the Court considers another Voting Rights Act (VRA) case—involving Alabama—next spring.
In Shelby County, Alabama v. Holder, Shelby County claims that Section 5 of the VRA is unconstitutional. Section 5 requires nine states and parts of another seven states to get preclearance from either the Justice Department or a federal court in Washington, D.C., before implementing any proposed changes to voting districts or procedures. Shelby County argues that since the 1965 passage of Section 5, conditions have improved so dramatically that this extraordinary intrusion into state sovereignty is no longer constitutional.
The Court last considered this question in 2009 in Northwest Austin Municipal Utility District Number One v. Holder. However, the justices opted to avoid the constitutional issue and decided the case on statutory grounds. The Court held that the Texas utility district could escape the statute by taking advantage of a Section 5 provision for bailout, whereby a jurisdiction is exempted from Section 5 coverage if a court finds it meets specific criteria outlined in the statute. The Court strongly criticized the Justice Department for, in essence, ignoring 1982 amendments intended to make bailout easier. The justices noted that the Civil Rights Division’s interpretation of the bailout provision “helped to render the bailout provision all but a nullity” and called the government’s position “untenable.”
Of the requirements a jurisdiction must meet to receive a Section 5 bailout, two of the most important are that, for the previous ten years, the jurisdiction (1) must have submitted all voting changes for preclearance and (2) was not subject to any valid objection by DOJ or a federal court that any of the changes were discriminatory. A covered jurisdiction that doesn’t satisfy these criteria is not entitled to bailout from a federal court, period.
Which brings us to New Hampshire. Though most jurisdictions subject to Section 5 are in the South, two townships and eight towns in New Hampshire were placed under Section 5 coverage in 1968. On November 15, 2012, New Hampshire filed a bailout complaint in federal court, requesting that its jurisdictions be relieved from coverage under Section 5.
But there’s one big problem for New Hampshire: For almost all of the 44 years that it has been covered under Section 5, New Hampshire has failed to comply with the law. The two townships and eight towns failed to submit for preclearance many voting changes they have made over that period. In fact, a November 18 internal DOJ memorandum sent by Chris Herren, chief of the voting section, to Thomas Perez, assistant attorney general for civil rights, confirms that “town officials uniformly indicated that they were not aware of their obligations under Section 5.” Clearly, then, they don’t meet the ten-year “clean record” criterion needed to qualify for bailout.
DOJ cannot waive this requirement — a fact made clear when the Court of Appeals for the District of Columbia issued its decision in the Shelby County case on May 18, 2012, upholding the constitutionality of Section 5 (the decision that is now before the Supreme Court). The appeals court noted that Shelby County was not entitled to bailout “because the county had held several special elections under a law for which it failed to seek preclearance” and because DOJ had objected to one submission. This affirmed the district court’s conclusion based on the “undisputed facts in the record” that Shelby County was “not eligible for bailout.” Under the statute, a “covered jurisdiction is only eligible for bailout if it has complied ‘with the requirement that no change covered by . . . [Section 5] has been enforced without preclearance.’”
An internal Civil Rights Division report compiled on September 10, 2012, listed 90 unsubmitted voting changes made by New Hampshire jurisdictions subject to Section 5. This was, apparently, too many for the Civil Rights Division to be able to gloss over. So the department generated a “revised” list on September 27 that identified “only” 20 uncleared changes. Whether they’re 90 or 20, however, they render New Hampshire ineligible for bailout.
But that didn’t stop Voting Section Chief Herren from recommending that Justice consent to New Hampshire’s requested bailout. In the November 18 internal memorandum, he urged that DOJ absolve the state of all its statutory sins by preclearing, on an expedited basis and without objection, all of its previously unsubmitted voting changes.
Under the Section 5 statute, the attorney general can consent to a bailout request only if he is “satisfied” that the covered jurisdiction has submitted “objective and compelling evidence . . . that the State or subdivision has complied with [the bailout] requirements.” Not only has the Voting Section unlawfully recommended that the assistant attorney general consent to bailout despite New Hampshire’s failure to comply with the law, but a draft consent decree is already circulating in the division because the recommendation was approved by Assistant Attorney General Perez. Even New Hampshire’s lawyer, Gerry Hebert, who used to work in the Voting Section, ought to know that New Hampshire is ineligible for bailout.
Contrast this DOJ fast-tracking of New Hampshire’s patently unqualified bailout request with its conduct in the Shelby County case. In Shelby, the district court noted that DOJ had objected in 2008 to an annexation of the city of Calera, a “governmental unit” within Shelby County, and that Shelby County held several special elections under one county ordinance that had not been submitted to DOJ for preclearance. That’s right — there was only one prior objection and only one voting change (not 20 or 90) that had not been submitted. Yet DOJ asked the court for six months of discovery to investigate Shelby County’s eligibility for bailout. The court denied the request and permitted no discovery into the eligibility question.
The internal DOJ November 18 memorandum indicates that, while 91.84 percent of eligible voters in New Hampshire are registered, “voter registration is lower in covered jurisdictions.” In fact, the registration rate drops steeply — to close to 70 percent — in four of the ten covered towns. In another two, the rate is lower than the state average. The memorandum also states that minority contacts in New Hampshire “were not aware of any active programs or efforts . . . to encourage voter registration or minority participation in the electoral process.” Yet these were not considered important factors by Voting Section Chief Herren and his team of lawyers, even though the statute says that covered jurisdictions must show “constructive efforts” to increase registration and voting and that a court should consider registration rates and disparities among them. Indeed, a standard part of the normal DOJ investigation is to interview minority contacts to see if they support bailout. The November 18 memorandum lists seven minority contacts. Four of the seven — including the president of the Manchester branch of the NAACP — opposed bailout.
Most minority contacts in New Hampshire opposed bailout because of perceived racial discrimination. Combined with the fact that the voter-registration rate in more than half of the covered jurisdictions is lower than the state average, such findings of noncompliance would have been the death knell for a bailout application when I worked in the Civil Rights Division.
So why the big hurry with New Hampshire and the refusal of the Justice Department to comply with the bailout requirements of Section 5? Sources tell me it’s because Justice wants to be able to get up before the Supreme Court in the Shelby County case and show that an entire state was able to bail out of Section 5. They want to argue that there is a viable way out for covered jurisdictions, including states, and that therefore the Supreme Court should not decide the constitutional issue. Justice officials are afraid that otherwise the Court will overturn Section 5. According to former Voting Section lawyer Christian Adams, DOJ has worked a similar deception in another bailout case involving Merced County, California.
For any jurisdiction covered under Section 5, the key to a successful bailout is DOJ consent. Yes, bailout is technically granted by a federal court, but judges tend to rubber-stamp such requests if Justice consents. In the New Hampshire case, the three-judge panel should not give the matter just a cursory review. It should deny bailout and make the Civil Rights Division justify its consent, given the state’s clear failure to comply with the statute. The Justice Department is trying to create evidence that it can use in its effort to manipulate the Supreme Court in the Shelby case.
Finally, the Supreme Court justices should take into account the improper, or at least highly unusual, actions of the Justice Department in the New Hampshire case when the Court considers the constitutionality of Section 5 in the Shelby County case. The department’s clear manipulation of the statute is just one more reason to throw out Section 5 of the Voting Rights Act, a statutory provision whose time has come and gone.
— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation. He is a former career lawyer at the Justice Department, where he served as counsel to the assistant attorney general for civil rights.
First appeared in National Review Online.
Rule of Law Initiative of the Leadership for America Campaign
Hans A. von Spakovsky
Senior Legal Fellow / Manager, Civil Justice Reform Initiative
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