The Justice Department is acting in a highly unusual, and likely unlawful, manner in New Hampshire. Once again, it’s a Voting Rights Act case. This time, shenanigans by DOJ’s Civil Rights Division in New Hampshire appear to be designed to influence the Supreme Court when the Court considers another Voting Rights Act (VRA) case—involving Alabama—next spring.
In Shelby County, Alabama v. Holder, Shelby County claims that Section 5 of the VRA is unconstitutional. Section 5 requires nine states and parts of another seven states to get preclearance from either the Justice Department or a federal court in Washington, D.C., before implementing any proposed changes to voting districts or procedures. Shelby County argues that since the 1965 passage of Section 5, conditions have improved so dramatically that this extraordinary intrusion into state sovereignty is no longer constitutional.
The Court last considered this question in 2009 in Northwest Austin Municipal Utility District Number One v. Holder. However, the justices opted to avoid the constitutional issue and decided the case on statutory grounds. The Court held that the Texas utility district could escape the statute by taking advantage of a Section 5 provision for bailout, whereby a jurisdiction is exempted from Section 5 coverage if a court finds it meets specific criteria outlined in the statute. The Court strongly criticized the Justice Department for, in essence, ignoring 1982 amendments intended to make bailout easier. The justices noted that the Civil Rights Division’s interpretation of the bailout provision “helped to render the bailout provision all but a nullity” and called the government’s position “untenable.”
Of the requirements a jurisdiction must meet to receive a Section 5 bailout, two of the most important are that, for the previous ten years, the jurisdiction (1) must have submitted all voting changes for preclearance and (2) was not subject to any valid objection by DOJ or a federal court that any of the changes were discriminatory. A covered jurisdiction that doesn’t satisfy these criteria is not entitled to bailout from a federal court, period.
Which brings us to New Hampshire. Though most jurisdictions subject to Section 5 are in the South, two townships and eight towns in New Hampshire were placed under Section 5 coverage in 1968. On November 15, 2012, New Hampshire filed a bailout complaint in federal court, requesting that its jurisdictions be relieved from coverage under Section 5.
But there’s one big problem for New Hampshire: For almost all of the 44 years that it has been covered under Section 5, New Hampshire has failed to comply with the law. The two townships and eight towns failed to submit for preclearance many voting changes they have made over that period. In fact, a November 18 internal DOJ memorandum sent by Chris Herren, chief of the voting section, to Thomas Perez, assistant attorney general for civil rights, confirms that “town officials uniformly indicated that they were not aware of their obligations under Section 5.” Clearly, then, they don’t meet the ten-year “clean record” criterion needed to qualify for bailout.
DOJ cannot waive this requirement — a fact made clear when the Court of Appeals for the District of Columbia issued its decision in the Shelby County case on May 18, 2012, upholding the constitutionality of Section 5 (the decision that is now before the Supreme Court). The appeals court noted that Shelby County was not entitled to bailout “because the county had held several special elections under a law for which it failed to seek preclearance” and because DOJ had objected to one submission. This affirmed the district court’s conclusion based on the “undisputed facts in the record” that Shelby County was “not eligible for bailout.” Under the statute, a “covered jurisdiction is only eligible for bailout if it has complied ‘with the requirement that no change covered by . . . [Section 5] has been enforced without preclearance.’”
An internal Civil Rights Division report compiled on September 10, 2012, listed 90 unsubmitted voting changes made by New Hampshire jurisdictions subject to Section 5. This was, apparently, too many for the Civil Rights Division to be able to gloss over. So the department generated a “revised” list on September 27 that identified “only” 20 uncleared changes. Whether they’re 90 or 20, however, they render New Hampshire ineligible for bailout.