Yesterday Bryan Preston noted that legislators in Texas are ready to bypass the Department of Justice for approval of new election laws like redistricting, and maybe even voter identification, and seek approval directly from United States District Court instead. A story in contrasts follows. (With a hat tip to Billy Berg), Virginia seems to be flinching from taking on DOJ to get plans approved. This Washington Post story has Virginia Attorney General Ken Cuccinelli’s spokesman saying that Virginia will not challenge the Voting Rights Act. A challenge is an attempt to have the law declared unconstitutional. Fine, but what about the two other options? Option A is to file a redistricting plan with the United States District Court for approval, and that doesn’t have to include a constitutional challenge to the law itself. Option B is to seek a statewide bailout from the Voting Rights Act.
Here’s a little secret. Yes, Virginia, the Department of Justice really DOES want you to bail out. There is nothing the DOJ would like more than for the entire state of Virginia to bailout from the Voting Rights Act. So Virginia, it is yours for the taking, if you apply. Consider Georgia. While Texas talks and Virginia flinches, Georgia has been acting. Thanks to savvy Georgia election lawyers, the peach state has pushed back against DOJ over and over again in the last year. When DOJ objected to Georgia’s citizenship verification program, Georgia sued. They just didn’t sue, they challenged Section 5 of the Voting Rights Act as unconstitutional (the law that forces states to seek federal approval for election changes.) What did DOJ do? Capitulate entirely, and quickly. Just within the last few weeks, it happened again. Facing difficulty getting the regulations which implement citizenship verification approved, Georgia once again sued in United States District Court. What did DOJ do? Capitulate again.
Here is the lesson for three states. First, if you care about state control over their own elections, Georgia has figured it out. Aggressively challenge DOJ’s disdain for your state election law in federal court, and you win. Threaten the whole statutory scheme of Section 5 which employs dozens and dozens of federal bureaucrats, and those same bureaucrats quickly settle the case and approve the state plan. Second, Texas is starting to understand, and this understanding will help get Texas Voter ID approved if Texas and other states follow Georgia’s lead, and not Virginia’s. Lastly, Virginia should follow Georgia’s example and take advantage of rights that are explicitly in federal law either to escape federal oversight, or get the federal court to approve state law changes. Even the DOJ wants Virginia to seek a bailout from Section 5, and Virginia should consider giving Department of Justice exactly what it wants.