Tuesday, August 21, 2012

State Of Alaska Sues U.S. Department Of Justice To Get Removed From the Preclearance List Prescribed By The Voting Rights Act

On August 21st, 2012, the State of Alaska filed a lawsuit against the U.S. Department of Justice seeking to block further enforcement of two provisions of the Voting Rights Act which are discriminatory against Alaska. Alaska is one of 16 states that all or in part are required to submit redistricting plans or proposed election changes to the U.S. Justice Department for review to ensure the plans aren't discriminatory.

The lawsuit, filed Tuesday in federal court in Washington, D.C., names U.S. Attorney General Eric Holder as the defendant. The state argues two sections of the act are unconstitutional: the approval requirement and the formula used to identify states to be approved, which the state says wrongly puts Alaska on the list. The state is asking a judge either to block enforcement of Sections 4 and 5, period, or at least, in Alaska. Furthermore, the Section 5 approval, or preclearance, requirement is onerous and time-consuming, creates uncertainty and delay and places Alaska's elections at the mercy of Department of Justice attorneys in Washington, D.C. The State of Alaska contends it cannot make the smallest change to its election procedures, even those that do not affect minority voting, without prior permission of the Department of Justice.

Alaska Assistant Attorney General Margaret Paton-Walsh said the state decided to sue now, in part to avoid a repeat of what happened earlier this year — where a court had signed off on a plan but the Justice Department had not. Suing now also provides more time for the case to play out, so it won't have to be rushed. The reason the suit was filed in Washington D.C. is because in order to bail out, a covered jurisdiction needs to obtain a declaratory judgment from the District Court for the District of Columbia. The United States Commission on Civil Rights recently reviewed the Justice Department Preclearance record and found that the percentage of DOJ objections to submitted changes has declined markedly throughout the 40-year period of the Act from 5.5 percent in the first period to 1.2 percent in the second, and to 0.6 percent in the third, so preclearance is on its way to becoming redundant, and the chances for a favorable resolution for Alaska are high.

The Alaska Redistricting Board, which is not a party to the suit, got caught in a ping-pong battle between state courts and the feds when crafting the new redistricting plan this year. After satisfying requirements levied by a state court judge, the feds ordered additional changes. But after the Redistricting Board made the changes, they got sued in state court, and a judge ordered additional changes to satisfy the state constitution. Back and forth it went until mid-summer. This kind of confusion should not happen; no one should be forced to serve two masters. The logical solution is to remove the federal requirement since the Alaska State Constitution already reflects federal civil rights law. Federal pre-clearance is also triggered because Alaska doesn’t provide ballots in the Native tongues. In a separate March 12th, 2012 editorial, the News-Miner characterized this dance between the Alaska Constitution and the federal law as "absolutely mind-boggling".

The Fairbanks Daily News-Miner has repeatedly editorialized aqainst the federal requirement. In a January 15th, 2012 editorial entitled "Right the wrong: Federal law is an obstacle to rational election districts", they identify the original act that put Alaska on the federal hit list:

How did this come to happen? Well-meaning Alaskans, while writing the nation’s most modern, progressive state constitution in the winter of 1955-1956, made a mistake. They required that anyone seeking to vote must read or speak English unless prevented by a disability. This actually was viewed as progressive, because most people can speak English. Unlike some southern states, Alaska did not require voters to read and / or write English, a much tougher literacy test. Still, Alaska voters wisely repealed the provision in 1970.

Too late. The Voting Rights Act requires federal pre-approval of election law changes in any state that, as of Nov. 1, 1964, had a “test or device” that tended to limit voters on the basis of race. The literacy test found in Alaska’s Constitution at that time is considered such a device. So Alaska is subject to federal oversight, apparently in perpetuity, under this criteria.

However, the specific intent of the original law was linguistic, not racial. But that doesn't matter to federal civil rights inquisitors who demand equal outcome as proof of non-racism. It also provides no sunset as a reward for a sustained record of compliance. Furthermore, Alaskans in modern times never endorsed the sort of overt racism once found in laws of the southern states; in fact, the people of Alaska explicitly repudiated such views in 1945 when the Territorial Legislature passed a civil rights law. That was two decades before the federal government got around to doing the same for the nation.

The News-Miner also cautions that even if the federal government "excused" Alaska’s long-since corrected mistake, Alaska might still be subject to the act under a different provision. In 1975, Congress decreed that English-language ballots are a limiting test or device in places where more than 5 percent of voters speak a different language. Some Alaska communities have that many Native language speakers, but the state doesn’t provide ballots written in those languages. It doesn’t matter that very few speakers also use the written language or that the state employs translators at most villages during elections. Federal pre-clearance is also triggered because Alaska doesn’t provide ballots in the Native tongues. So the state would need to be relieved of that requirement as well.

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