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.