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Voting Rights and the Other Bailouts



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It was breathtaking, really. Last Wednesday, the deputy solicitor general and an attorney for the NAACP made claims before the Supreme Court that were almost totally divorced from reality. They were discussing how the Justice Department’s Civil Rights Division administers Section 5 of the Voting Rights Act.

The case in question is Northwest Austin Municipal Utility District Number One v. Holder. Just one example from the oral arguments suffices to show how easy it is for lawyers to get away with making misrepresentations to the Court, even if they did not intend to do so.

When Justice Scalia pointed out that it is “obviously quite impracticable for anyone to bail out” of being covered under Section 5 of the Voting Rights Act, Deputy SG Neal Katyal responded by claiming that the reason states and other political subdivisions don’t bail out is because they are happy being supervised by Justice and do not mind the federal intrusion into their sovereignty. Rubbish. Self-interested entities as they are, states and local municipalities do not suffer from the sort of “Stockholm Syndrome” that Mr. Katyal describes. Rather, they are victims (and occasional beneficiaries) of a pernicious political reality. 

Political jurisdictions covered under Section 5 can bail out of coverage if they file a lawsuit in federal court in Washington and get approval from a federal judge. But the political costs for doing so can be prohibitive. A Democratic election official once told me that she was well aware that Section 5 was no longer needed in the South, but to say so publicly or to try to bail out legally was political suicide. 

When I was at Justice, I met local officials whose jurisdictions had perfect records on voting matters and thus could have met the statutory requirement for bailout. But they dared not apply, they told me, because they were terrified of being labeled as “racists” by the NAACP and other civil-rights organizations. 

Then there are the financial costs. Bailout can be an extremely expensive ordeal, particularly for cash-strapped municipalities and counties. Hiring a voting-law attorney to troop to Washington with a handful of expert witnesses can easily run into the tens and hundreds of thousands of dollars. This, of course, is taxpayer money.

And even if taxpayer dollars are spent on such an endeavor, the Voting Rights Act’s prerequisites for bailout are extremely onerous. A single disgruntled plaintiff can force the jurisdiction to remain under the thumb of the Justice Department. As Justice Kennedy remarked at oral argument, the most trivial slip-up renders a jurisdiction ineligible for bailout for ten years. 

The real key, then, to a successful suit is getting the Civil Rights Division to consent to the bailout. But that consent often comes at a very heavy price. 

Most career lawyers within the Civil Rights Division detest bailouts for both ideological and practical reasons. Not only do these attorneys feel that it is the federal government’s solemn responsibility to reign over the South ad infinitum, but they fear that a large number of bailouts would put their jobs in jeopardy. They thus erect every obstacle they can into the path of jurisdictions seeking bailout. (The one exception is bailout applications submitted by a particular politically-connected lawyer in Washington who has represented, by my count, every single one of the jurisdictions — all of them political subdivisions in Virginia — that have successfully escaped from coverage. This individual is a former Voting Section attorney, and his old colleagues in that office are willing to be flexible for his clients.)

Just how partisan and insidious is the relationship between many Civil Rights Division lawyers and the nation’s left-leaning civil-rights organizations? Here’s an example from my days in the Division. One of the deputy chiefs in the Voting Section proposed that a jurisdiction seeking bailout be required, for ten years after the federal court declared it free from coverage, to submit any change affecting voting to the local branch of the NAACP for approval! I kid you not. The political leadership was naturally aghast at this recommendation and quickly shot it down. But the fact that a supervisor in the Division would float such an absurd idea as a commonsense proposal shows how out of touch with reality the career staff was (and, in many cases, still is today).

Of course, hard-boiled partisans of both political parties like Section 5 because they use its requirements to racially gerrymander districts to their political advantage — herding minority voters into special districts helps elect Democrats in those districts and Republicans in surrounding districts.

But to claim, as the Justice Department and civil-rights groups did Wednesday, that local elections officials toil happily beneath the lash of antiquated restrictions imposed by the Voting Rights Act is laughable. Bailout is extraordinarily expensive (both politically and financially). It is impracticable. And its availability is largely controlled by a group of partisan career attorneys in the Civil Rights Division who are hell-bent on continuing their employment by ensuring its minimal application. 

Unfortunately, until now, the public has known little about this reality because no one who has worked in the Division has dared to write about the shenanigans that go on there. The only information shared with the public has come in the form of leaks from liberal career attorneys who opposed the policy decisions of the Bush administration. It is time to shine light on the bureaucratic morass that is the Civil Rights Division.



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