The Voting Rights Act and the Section 3 ‘opt in’ provision

Posted by AzBlueMeanie:

A frequently made argument by GOP apologists, like Robert Robb of the Arizona Republic, is that Arizona should not be a covered jurisdiction under the Voting Rights Act.

Arizona failed to meet certain criteria in 1972 to get federal approval for any state legislation or procedural changes that could impact voting, which included having low voter turnout and not offering election materials in other languages.

Arizona in 1974 implemented bilingual voting, but Congress never removed Arizona from the Section 4 covered jurisdiction formula in subsequent renewals of the Act. "We're being punished for the past!"

This argument requires one to ignore the fact that Arizona has always had the opportunity to "opt out" of the covered jurisdiction formula if it could adequately demonstrate a clean bill of health for a period of 10 years without any violations for discrimination against voters. A number of jurisdictions have successfully "opted out' over the years.

This argument also requires one to ignore the history of discrimination that occurred after Arizona was added to the list of covered jurisdictions — the Department of Justice filed formal objections
to racially discriminatory changes to Arizona law 22 times since 1973,
including each decennial redistricting — except for the most recent
redistricting in 2012.

This is the reason why Arizona has never been able to qualify for the "opt out" provision. Arizona cannot demonstrate a clean bill of health for a period of 10 years without any violations for discrimination against voters. Funny how the GOP apologists never mention this. They would have you believe it was just a one-off event over bilingual ballots in 1972. Hardly.

The U.S. Supreme Court decision in Shelby County v. Holder has, at least temporarily, relieved Arizona of Section 5 preclearance obligations, as Section 5 is suspended until such time that Congress can enact a new Section 4 coverage formula.

The Supreme Court left undisturbed all other provisions of the Voting Rights Act. One little-used enforcement provison of the Voting Rights Act is Section 3, the "opt in" provision. Section 3 may now come into wider use.

Adam Serwer writes, The secret weapon that could save the Voting Rights Act:

Voting rights advocates are testing whether a little-used provision of the Voting Rights Act could limit the damage of the Supreme Court ruling that struck down a key part of the landmark civil rights law.

* * *

Section 3 of the Voting Rights Act allows the federal government to
subject jurisdictions with recent records of deliberate discrimination
to the preclearance requirement. With Congress polarized and unlikely to
come together to fix Section 4′s coverage formula, Section 3 could
become the primary tool for the Justice Department and voting rights
activists seeking to patch the gaping hole left by the Supreme Court’s
verdict. Travis Crum, now a clerk for federal judge David S. Tatel, laid
out this approach in an article for the Yale Law Journal in 2010,
anticipating that the Supreme Court would someday strike down part of
the Voting Rights Act. Crum called Section 3 the Voting Rights’ Act’s
“secret weapon.”

Voting rights advocates are already putting the Section 3 strategy to
the test. Last Tuesday, attorneys representing the Texas branches of
the NAACP, the Texas Legislative Black Caucus, and Democratic State
Senator Wendy Davis in a legal battle with the state over Texas’ redistricting plan asked a federal court to place the entire state of Texas back under preclearance in accordance with Section 3.

“What the court found in the case as a factual matter, their findings
were that the congressional map and the senate map were both
intentionally discriminatory,” says Gerald Hebert, an attorney with the
Campaign Legal Center who represents the groups who filed the request.
“That kind of intentional discrimination violates the 14th and 15th
amendments.”

That high standard of proof is also part of what limits the
effectiveness of Section 3 as a replacement for Section 4. To impose
preclearance on a jurisdiction not covered by the now-defunct Section 4
formula, you have to prove that officials intended to discriminate.
Under the old formula, all that had to be proven was that the election
law changes would have discriminatory effects—precisely because most
people are smart enough to hide when they’re deliberately trying to
discriminate.

In Texas, state officials weren’t that smart.
Nevertheless, the requirement that deliberate discrimination be proven
means that it will be very difficult to subject states that try to
disenfranchise minority voters to preclearance, because all they need is
a superficial “race-neutral” reason for making the change.

“What you’re likely to see in states where these actions are brought is
states trying to avoid an adverse Section 3 ruling by saying, our real
intent here is to hurt Democrats. Since that’s our intent, that’s not a
racial intent and that’s not forbidden by the Constitution,” says Brenda
Wright, a legal expert with liberal think tank Demos.  Judges might not
subject jurisdictions to preclearance even if deliberate discrimination
is proven, or they might do so only in areas related to the
discriminatory policy.

Wright pointed MSNBC to a 2004 Section 2 case in Massachusetts where
officials said they were just trying to protect incumbents when they
redrew legislative districts in a manner that weakened the voting powers
of minorities. It just so happened that the incumbents happened to be
white and the voters they were disenfranchising were black and Latino.
The court didn’t buy it, but under Section 2, unlike Section 3, you need
to prove only the changes will adversely affect minorities, not that they were intended to.

“Proving intent is not easy,” says Hebert, pointing out that in 1982
Congress changed the standard for proving discrimination in Section 2 of
the Voting Rights Act in order to define changes that would have the
“effect” of disenfranchising minorities as discriminatory. That was a
change that Chief Justice John Roberts, who wrote the opinion striking
down Section 4, vigorously opposed as a young attorney
in the Reagan Justice Department. Section 2 however, unlike
preclearance, isn’t as useful for stopping discriminatory election law
changes before they happen.

That’s why voting rights advocates are hoping that Congress will not
only fix Section 4′s coverage formula, they will strengthen Section 3 so
that jurisdictions who make election law changes that have the effect
of disenfranchising minorities can be subject to preclearance.

* * *

In the past Southern conservatives have bristled at being subject to
Section 4′s preclearance formula, arguing that they are being punished
for the past. Strengthening Section 3 could bypass their opposition. In
the meantime, the Justice Department could divert some of the staff and
resources once assigned to evaluating states subject to preclearance to
ensuring that those jurisdictions with the worst records of
discrimination are brought back into the fold under Section 3.

“It’s an important avenue for the department and other litigants to
look at,” says Wright. “By no means is it going to be an adequate
substitute for what we’ve lost with the Shelby County decision.”

Texas is a likely candidate for Section 3 "opt in" coverage because it was so blatantly discriminatory.