The Preclearance Flaw

Guest post by Professor Bertrall Ross

The consolidated cases of Perry v. Perez, Perry v. Perez, and Perry v. Davis (the Texas redistricting cases) highlight for the first time an important flaw in the preclearance mechanism under Section 5 of the Voting Rights Act that is central to the case.  This flaw arose because Congress in 1965 did not foresee preclearance being applied to the mandatory change of decennial reapportionment. In fact, congressional focus at the time of enactment in 1965 was on deterring jurisdictions with a history of voting discrimination (covered jurisdictions) from making discretionary changes to their voting laws that had the purpose or would have the effect of denying the vote on account of race.  Congressional concerns about vote dilution would only arise later. 

The covered jurisdictions under the preclearance mechanism as applied to discretionary voting changes had the option of maintaining the status quo with respect to their voting laws or seeking preclearance for any electoral changes that they chose to make.  And as originally conceived, when the covered jurisdiction decided to make an electoral change and proceed down the preclearance route, any costs associated with the delay of obtaining preclearance would be borne by the covered jurisdiction because it would have to retain the prior law until the new law was approved.

Faced with this burden of delay, the covered jurisdiction could decide whether to proceed down any of the three routes designated in the law to obtain preclearance. First, it could seek preclearance from the Department of Justice, which proceeds in a more expedited fashion.  Alternatively, it could seek preclearance from the Department of Justice concurrently with a declaratory judgment action in the District Court for the District of Columbia. This would also provide expedited review while the declaratory action wound its way through the more deliberate judicial channels.  Finally, the covered jurisdiction could proceed down the slow route and seek preclearance exclusively through a declaratory judgment action in the District Court for the District of Columbia.  When the voting change was discretionary, minority voters generally did not suffer any consequences from the delay since it could not go into effect until it was approved.

The flaw in the Section 5 pre-clearance mechanism arises from situations, such as reapportionment, where covered jurisdictions are required to make voting changes. The constitutional requirement of one-person, one-vote mandates that states reapportion to create electoral districts of equal population at least every ten years. In addition to the mandatory nature of the change, there are important time constraints associated with it. Covered jurisdictions ordinarily have to reapportion between the time it receives the census numbers and the next election. In the case of Texas, this meant that it had about a year to reapportion and obtain preclearance for the change.

Now, there is a dispute about whether Texas intentionally delayed the process of reapportionment; however, the arguments of the appellees in the case that the state should be penalized for the manner in which it sought preclearance — through the slow route of the declaratory judgment action in the District Court of the District of Columbia — seems a little misguided from a legal perspective. Sure, the State could have gone through the more expedited channels of the Department of Justice — and given the Texas’s history of violations of the Voting Rights Act, it is probable that the decision not to do so is driven in part by its minimal regard for the rights of minority voters — but there is nothing in the statute itself suggesting that it has to. And once it decided to proceed down the path of a judicial declaratory judgment action, it also seems wrong to suggest that they were legally required to forego pre-trial adjudication procedures such as summary judgment, even again recognizing the potentially nefarious motives for this decision that slowed the process.

What this case points to is the fact that the preclearance mechanism did not account for cases, like reapportionment cases, in which the burden of delay does not necessarily fall on the covered jurisdiction.  In these cases, the change has to made –  a new reapportionment plan has to be adopted for the 2012 elections to accord with the constitutional requirement of one person, one vote.  And the fact remains that judicial process takes time and such process often will not be able accommodate the time constraints presented in cases like this one.

If Congress had anticipated the conundrum presented by the need to obtain preclearance for reapportionment in 1965, it would have likely forced covered jurisdictions to proceed down the more expedited path in such cases. And the fault of subsequent Congresses responsible for the re-authorization of the statute in 1970, 1975, 1982, and 2006 was that they simply assumed that covered jurisdictions would continue to proceed, as they had with respect to most other voting changes, through the more expedited channels of DOJ preclearance, even though the covered jurisdictions were not required to do so.

Assuming that the court rejects the court plan and adopts the state plan as the interim plan until preclearance is obtained, as I expect it will, this suggests the need for a congressional fix to the pre-clearance mechanism since the burden of delay will now fall on minority voters who face potential deprivations of their rights. Such a fix would force covered jurisdictions to obtain preclearance for changes necessitated by reapportionment through the more expedited preclearance channel involving the Department of Justice. I don’t see this fix as particularly politically feasible in the current context, but perhaps it could be made prior to the next decennial reapportionment assuming Section 5 is still around.

A version of this entry also appears on SCOTUSblog.

Bertrall Ross teaches Legislation, Election Law, and Constitutional Law at Berkeley Law. In the area of legislation, his current research seeks to address how courts should reconcile legislative supremacy with the vexing problem of interpreting statutes in contexts not foreseen by the enacting legislature. In election law, he is examining the constitutional dimensions and the structural sources of the marginalization of the poor in the American political process.

Prior to joining the Berkeley faculty, Bertrall was a Kellis Parker Academic Fellow at Columbia Law School. He clerked for the Honorable Dorothy Nelson of the Ninth Circuit Court of Appeals and the Honorable Myron Thompson of the Middle District of Alabama. He received his J.D. from Yale Law School and has an M.Sc in the Politics of the World Economy from the London School of Economics, a Masters in Public Affairs from Princeton University Woodrow Wilson School of Public and International Affairs, and a B.A. in International Affairs and History from the University of Colorado, Boulder.