WASHINGTON — The nation’s first black president has exempted a record number of local governments from a federal law that requires them to prove their election procedures do not discriminate against minority voters.
That irony could be significant when the Supreme Court hears oral arguments Feb. 27 on whether to strike down key provisions of the 1965 Voting Rights Act.
In the last four years alone, President Barack Obama’s administration has exempted 127 local jurisdictions — mostly counties and cities — from Section 5 of the landmark civil rights law.
The section requires places with a history of discrimination to get approval from the Justice Department or a federal court before making any changes to their election procedures.
In the case before the court, officials in Shelby County, Ala., say Section 5 is an outdated burden on communities that have long since transcended their discriminatory pasts.
From 1982-2009, only 85 jurisdictions were allowed to “bail out” from Section 5.
“That ought to mean something,” said Gerald Hebert, an attorney with the Campaign Legal Center who specializes in helping jurisdictions win Section 5 exemptions. “Things have changed for the better as far as the Voting Rights Act is concerned.”
In 2009, the Supreme Court loosened the requirements for winning an exemption from Section 5, which helps explain why the Obama administration has granted more than any other.
To win an exemption, a local government must show it’s moved beyond its discriminatory history. One criteria is that the jurisdiction has proposed no voting change in the last 10 years that has drawn an objection from the Justice Department.
In an unusual twist, some conservatives who want Section 5 thrown out say some recent exemptions granted by the Justice Department aren’t valid.
Those conservatives allege the agency is bending the rules to grant exemptions as part of a strategy to counter arguments that Section 5 is overly burdensome. The fact that jurisdictions can earn their way out of coverage has long been a factor in why the Voting Rights Act has been upheld.
“I don’t oppose bailouts if the jurisdictions meet the standards,” said Hans von Spakovsky, a Heritage Foundation fellow who worked in the Justice Department’s civil rights division in the George W. Bush administration. “The problem is when the Justice Department starts broadly waiving the standards because they want to make a political point with the court.”
Von Spakovsky and other conservatives cite the example of New Hampshire, which never submitted some election-related changes to the department for review, but was approved for a bailout anyway.
Von Spakovsky and other former Justice Department employees have filed court papers backing Shelby County in the Supreme Court case.
Hebert, who worked in the voting rights section of the Justice Department for 20 years, rejects the conservatives’ allegation.
He said Justice officials have granted bailouts — even in places that missed filing deadlines — starting long before 2009, when the bailout rules were loosened and the number of exemptions started accelerating. For example, Shenandoah County, Va., was approved for a bailout in 1999, despite never submitting 31 election-related changes for approval.
Shelby County, the plaintiff in the case before the Supreme Court, wouldn’t qualify for a bailout. One of the county’s cities redrew its political boundaries in 2008 in a way the Justice Department said was unfair to minority voters.
“This is more evidence of the symmetry and workable nature of this civil rights protection,” said Debo Adegbile, acting president of the NAACP Legal Defense Fund, which is representing black voters in the Supreme Court case. “There is a way in, there is a way out, and you are incentivized to comply, and that incentive is to allow all people the right to vote. And if that is not an incentive, then you have to ask what type of society we are living in.”
Shelby County officials hope to persuade the Supreme Court that Section 5 is unconstitutional, in part because bailouts are too few and far between. They note that only about 1 percent of the more than 12,000 jurisdictions covered by Section 5 have been allowed to bail out. And even those jurisdictions could lose their exemption if they make a misstep in running their elections.
Shelby County wants the court to approve what would essentially amount to a nationwide bailout, by eliminating Section 5 entirely.
But civil rights groups say it’s too soon.
“We would love a day where all these jurisdictions can meet the bailout criteria because they have a clean record under voting rights, but we’re not there yet,” said Nina Perales, vice president of litigation with the Mexican American Legal Defense and Educational Fund.