Thursday, February 10, 2011

Turning the Voting Rights Act on its Head?

Florida's Republican governor, Rick Scott, is using the Voting Rights Act's preclearance requirement to delay implementation of a voter-approved initiative that bars partisan gerrymandering.  And voting rights activists are not happy.  According to Laughling McDonald, director of the ACLU's Voting Rights Project in Atlanta., "This is a bizarre situation. It turns the law on its head." This is because the Governor is using a remedial law to stall a reform effort.  Similarly, says Rick Pildes, professor of law at New York University, "This is extraordinary. I've never seen anything like it." . . .  "The governor is essentially using a federal law obligation that binds the states to attempt to avoid enforcing a state law that he apparently would prefer the state had not adopted."

I am not sure I follow.  Is the critique that this is not a covered change? Or is it that the law in question has neither a purpose nor will it have the effect of denying or abridging the right to vote on account of race or color? Or, worse yet, is it that the governor's heart is in the wrong place?

I don't know enough about the political background of this law, or its application, but we know this much: in light of Allen v. Virginia Bd. of Elections, can anybody safely say that any change in matters of election is not covered by the preclearance requirement?  Further, and in light of the denial of preclearance by the Department of Justice in LaRoque, a case where the reform in question was a voter-approved referendum was a change from partisan to non-partisan city council elections, could anybody be sure whether a change, no matter how non-racial it might appear to be, does not run afoul of the preclearance standard?

Or else, do we really want to start looking into the motivations of state actors who submit laws for preclearance?

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