What Can The Justice Department Do To Fight Changes To Voter Laws?

As the Justice Department begins to battle states over changes in voter laws, the question is: What can actually be done?

Holder is talking about your right to vote...here

Attorney General Eric Holder, shown here at the National Urban League Conference, will intend to sue to force preclearance on Texas on voter laws. (Source: Reuters)

When the United States Supreme Court struck down key provisions of the Voting Rights Act of 1965 earlier this year in the landmark case Shelby County v. Holder, the Department of Justice went into a scramble.  Many states, particularly southern and Midwestern states with Republican majorities, have used the decision to push for massive changes to their voting laws which many say is specifically designed to suppress the voting rights abilities of minorities.  The most comprehensive of these bills is currently being considered in North Carolina, which not only includes a voter ID provision, but also restrictions on early voting, voter registration, and other provisions that really have nothing to do with combating voter fraud.  The Justice Department has now announced that they will use everything in their power to still utilize the "preclearance" provision of the Voting Rights Act to force states to require permission to clear their voting rules, using Texas as the first case.  But what can the Justice Department do, and what should it be doing to address voter suppression?  Let us review the situation.

Section 5:  The Preclearance Issue

What the Supreme Court struck down in the Voting Rights Act was Section 4(b), or the "affected states" provision.  In it, several states and counties with a history of voter discrimination were forced to go through the Justice Department when making any changes to their voting laws, or "preclearance" as determined by Section 5 of the law.  The states included much of the Deep South, Arizona, Virginia, and Alaska, while counties included parts of of New York City, central California, and several towns in New Hampshire.  The section allowed for individual counties to "bail out" of the Act if they proved they were not practicing discriminatory behavior for a period of 10 years.  The point of the Shelby County v. Holder was that Shelby County, Alabama felt it was being unfairly treated by the act based on information from the Civil Rights Era, rather than now.  This is not without merit:  While the Justice Department was right to target the South at the time, that it did not later target northeast and Midwest states (whose discrimination practices only later developed) gave some validity.  However, by striking down Section 4(b), this made Section 5 toothless until Congress provides a new coverage area, which given the current political deadlock, seems unlikely, and allows voter suppression to occur unheeded.

Sections 2 and 3:  The Justice Department's Remaining Weapons

Without Section 4(b), the Justice Department or plantiffs must actually sue to force preclearance on a county or state.  Section 2 of the Voting Rights Act bars voter discrimination everywhere, regardless of the intent of voter laws.  On this basic principle alone, the Justice Department can sue any county for voter discrimination, though it has not been actively doing so, instead relying heavily on preclearance.  Now, they have no choice but to sue.  There is also Section 3 of the law, which is the only other law that gives Section 5 power.  In it, any area found to be intentionally discriminating against voter minorities or the like will be subject to preclearance by the Justice Department.  This can be a useful tool, but it means that the Justice Department will have to settle matters on a case-by-case basis, assuming that it has resources, and more importantly the will, to perform such a large task.  

Partisanship In The States:  The Real Problem

While these problems could be addressed with the Justice Department suing and Congress enacting a new preclearance map, even if they were able to complete these complicated tasks that require sacrifice and compromise (which both sides are obviously hesitant about), it does not get to the real issue:  That voter laws and rules are essentially in the hands of state legislatures.  As the partisanship of the last few decades has indicated, both Democrats and Republicans have taken the "to victor belong the spoils" mentality to extremes, often through changes in voter laws to their advantage and redistricting their state maps to maintain their control of the state's Congressional delegation, the latter in a practice called "gerrymandering."  Such practices not only suppress voters by having their rights being held at the whims of the majority party, but weakening the value of one's vote by placing their vote in an area where a majority is assured.  Both situations also prevent any party outside the two mainstream parties from being competitive at any legislative level, and can create situations where the party with the most votes will still have a minority of seats, as was demonstrated in the 2012 election for the House of Representatives.

With this situation, there are limits of what one can do.  Establishing an independent commission to set the rules of elections and voting, as well as the mapping of legislative and electoral boundaries as determined by Census data, would probably be the best way to greatly weaken voter suppression.  However, while independent commissions exist in some states to address redistricting, the notion of taking the controls of voter laws out of the hands of legislators will no doubt be seen as a disruption to legislative power and democracy, even if it were to be controlled by the judiciary branch of government.  Were the federal government to intervene, it would no doubt be seen as an intrusion on states' rights.  If the true issue of voter suppression is to be resolved, it can only be resolved in a grassroots way, and by forcing the hand of the partisans.

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