an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
After Shelby County v. Holder, the big question was how different things would really be. After all, plenty of places, including states with highly contentious fights about election procedures and redistricting such as Ohio and Pennsylvania, have never been covered anyway. Was Section 5 really holding back a flood of election changes across the South that would negatively affect minority voters? Or were voting rights advocates’ fears overblown?
As of today it has been a month since Shelby County, and we’re starting to find out. In short, it looks like the voting rights advocates knew what they were talking about. (As did Justice Ginsburg, who told the AP today, “I didn't want to be right, but sadly I am.”) With impressive speed, formerly-covered jurisdictions are enacting and implementing major voting changes that will negatively affect minority voters—as well as the poor, elderly, and young voters who were the indirect beneficiaries of Section 5’s protections. Some of these changes are getting a lot of attention, such as the fusillade of statewide changes in North Carolina, where things have now escalated to the point of sit-ins and protests. In Florida, aggressive voter roll purges are set to resume—a story that will undoubtedly get some national attention because of memories of the Florida voter purge in 2000 that removed from the rolls a number of eligible voters many times larger than Bush’s margin of victory. (And indeed, the architect of the purge set to begin now in 2013 is the very same guy who orchestrated that infamous 2000 purge effort.) North Carolina and Florida were only ever partially covered by the formula the Court struck down in Shelby County, but that was enough to prevent changes like these. In the absence of Section 5, we’re off to the races.
However, the greatest impact of Shelby County will likely be at the local level—in places where media scrutiny is minimal, and litigation resources meager. You will hear less about these local cases. But I think that's a problem; they are really where the action is. And so, via the excellent Texas Redistricting blog (which has links to all the filings and so on), today I bring you the following report from Beaumont, Texas, a small city of about 120,000 in the southeast corner of the state, on the Gulf Coast south of the piney woods. The population is about 45% black; four out of seven school board members are black. Voting is pretty racially polarized. This is a convoluted tale, as these tales often are. But in brief, three candidates who lost in the last election to three of the four black school board members are trying to get a state court to oust those three black incumbents and install them (the losing candidates) instead. The losing candidates pulled off a sneaky, and rather brazen, subterfuge: they filed candidate papers for a special election that had not yet been announced, and then subsequently convinced a state court that state law required ordering the election, with a retroactive filing deadline that had already passed. Since the three black incumbents did not file candidate papers—understandably, since no election had been called for their seats, and they are only halfway through their terms—the non-black challengers say the court should just install them, the challengers, as winners by default. The Beaumont situation provides a particularly clear case of a local shenanigan that could occur only because of the demise of Section 5, for reasons I'll explain below the fold.
But first slightly more detail about what went down in Beaumont. In 2011, Beaumont tried (by referendum) to change its school board to a mix of districting and at-large. The DOJ refused to preclear this change (which was supported by, among others, the three losing candidates now trying to oust those three black school board members). The DOJ found that the partially at-large plan would hurt black voters. In response and after a bit of confusion, the school district slightly revised its seven-district map to account for population growth, and then set an election for May 2013 in three of the districts, but not in the other four, because of the staggered terms. Black incumbents in districts 1, 2, and 3, and a white incumbent in district 5, were not up for re-election until 2015. Then, late in the day on the last day of the candidate filing period for the May 2013 election, the three candidates who lost to those three black incumbents filed their candidate papers, as I mentioned above, even though no election had been called for their seats. The white incumbent in district 5 filed papers to run also. They then marched into state court seeking a writ of mandamus either (a) installing them as the new school board members in districts 1, 2, 3, and 5, or alternatively, (b) ordering a new election in which they would run unopposed, on the grounds that state law requires the district to hold new elections for all the districts, not just half. The state court granted the motion, ordering new elections in all seven seats, with a retroactive filing deadline that the black incumbents in districts 1-3 had missed. DOJ took one look at this and said forget it. No way would Section 5 allow the removal of almost all the black officeholders on the board, and their replacement with the non-black candidates they beat in a fair election two years earlier. Under a federal TRO, the school district cancelled the May election.
What a difference a couple of months makes. Today, because “things have changed in the South,” Beaumont is out from under Section 5. Consequently, the federal court has just declared that it lacks any jurisdiction over this dispute. It has sent the case back to state court, where the non-black candidates have renewed their mandamus motion for a court order ousting the black incumbents and installing themselves as the new school board.
The Beaumont case thus provides a particularly clear case of the effect of the demise of Section 5: under Section 5, this particular shenanigan went nowhere, blocked by the DOJ and federal courts. But now, absent Section 5, it may well go ahead. That is part of why the news yesterday that the Department of Justice is seeking to get Texas covered again, as the central test case of Section 3(c)(the “bail-in” provision), is so important.
With the gradual decline of local journalism, I only know about this story because of a blog post (and many of you who are reading this probably only know about it because of this blog post). Across the South, many controversies of this kind are going to go under the radar, with no reporter, or even a blogger, bothering to cover them at all. Moreover, in many cases there will be no resources for civil rights lawyers to fight the changes—even if a Section 2 violation, for instance, could be proved.
So that’s where we are. There are no promising signals from Congress. After one month without Section 5, there is no reason to expect that the formerly-covered jurisdictions are spontaneously going to start behaving themselves. These jurisdictions were covered for a reason. Indeed they are highly overlapping with the jurisdictions most plausible new formulas would also cover, as Chris Elmendorf and Doug Spencer argue in an important new paper. This is why I think the Supreme Court would be unlikely to accept a new coverage formula, even if Congress could pass it: any plausible formula will probably show that the South is not quite the same as the rest of the nation.
That leaves Section 3 bail-in. The bail-in provision needs to be strengthened, but only Congress can do that; in the meantime, under current law, no one yet knows quite what the standard will look like. With Texas as an enormous test case, we’re about to find out. Posted
by Joey Fishkin [link]