Preclearance: A Perpetual Punitory Practice?

In the recent November election, the people of the State of Alabama chose to put a Republican majority in the state legislature for the first time in 136 years. On top of that, we elected Republicans to Governor, Lt. Governor and a majority of other state offices. Needless to say, after generations of Democratic leadership, changes are to be expected.

One of these initiatives involved the passage of a new law in December designed to break the hold of two powerful unions - the Alabama Education Association (AEA) and the Alabama State Employees Association (ASEA). Prior to December, public employees were permitted to contribute directly to these unions through payroll deductions, very much a conflict of interest given the role these organizations play in the political life of the state. However, the argument either for or against this legislation is not the topic at hand.

According to the Associated Press, this new law has to be approved by the United States Department of Justice (DOJ) before it can be put into effect. The reason? The 1965 Voting Rights Act.

Arising out of the civil rights conflicts across the nation - and most famously in the South - the Voting Rights Act followed closely after the Civil Rights Act of 1964. The primary intent, according to the text of the Act (Section 2), is to ensure:

SEC. 2. No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.

Again, as a reinforcement of the 15th Amendment to the Constitution, there is really little here to argue, nor would I presume to do so. There is another section however that is much more punitive and controversial, and becomes more so after 45 years and counting:

SEC. 5. Whenever a State or political subdivision with respect to which the prohibitions set forth in section 4(a) are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the Attorney General's failure to object nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court.

In practice, this is known as the Preclearance Requirement. Basically, the passage of any state law that intersects ever so slightly (even changing a polling place from one location to another) requires approval from the federal government. But note, this requirement doesn't apply to all states. Instead, it applies only to what is called the "covered jurisdiction." That covered jurisdiction is illustrated in the map below (click for larger version):


Arguments have been made that this is an infringement on state's rights. Likewise, arguments have been made that the only way to enforce the Act was to impose Preclearance on those jurisdictions guilty of prior abuse or neglect of the 15th Amendment. After 46 years, has the culture of these states changed enough that the scarlet letter can be removed? Or are past infringements completely unforgivable, such that the towns, cities and states must forever get permission to pass laws that have no bearing or application at the federal level? For now, the punitory practice continues.

According to the Alabama Attorney General, submitting such laws for review per the Preclearance requirement is routine. After 46 years, that's not surprising. What is surprising is the continued acquiescence after so much time. All it would take would be a politicized DOJ to arbitrarily block state legislation from being enforced. And only some states at that. Clearly, not all states have sovereignty.

But I suppose there is nothing to worry about. The DOJ would never allow itself to become politicized, playing favorites or selectively enforcing some laws and not others, right?