Jim Hood doesn’t think his fellow Mississippians can be trusted to run elections fairly.
Even with more black elected officials than any state in the country, even with courthouses and city halls around the state under majority-black control, the Democratic attorney general still believes that Mississippi could revert back to its segregationist past if left to its own devices.
That is the unstated inference in his decision to join three other Democratic state attorneys general and the Obama administration in defending Section 5 of the Voting Rights Act.
Section 5 requires Mississippi and all or parts of 15 other states, because of their past history of discrimination, to get preclearance from the U.S. Justice Department for every change they want to make related to elections, even something as mundane as moving a polling place.
That section — and another related one that defines who is covered by the preclearance provision — is the focus of a U.S. Supreme Court case set for oral argument Wednesday. Shelby County, Ala., is challenging whether the discriminatory treatment it and other “covered jurisdictions” receive from the federal government remains constitutional.
A sizable number of Mississippians would side with Shelby County and say that it’s not. Hood, however, took it upon himself to speak for the state and say that it still needed to be treated differently under the Voting Rights Act than most of the rest of the country.
I tried to get Hood to explain his side last week. I got the usual brush-off. “Our reasons for joining in this case are outlined in our filing,” said spokeswoman Jan Shaefer in an email. I’ve read the brief. It confirms what I’ve long held. Almost all the contemporary arguments for the reasonableness and effectiveness of Section 5 could be applied to anywhere in the country, not just the singled-out 16. What Hood argues is good for Mississippi should be good for Maine, Massachusetts and Minnesota, too.
The brief suggests that jurisdictions that complain about all the hoops the Justice Department requires them to jump through are just whiners. It’s really, the brief says, not that cumbersome or expensive to provide the data that the federal regulators require.
Without Section 5 in the Voting Rights Act, the brief also says, any person or group who felt aggrieved by an election change would only have the recourse of filing a lawsuit. The covered jurisdictions, the attorneys general claim, would spend a whole lot more money defending against these lawsuits than what it costs them to get their election changes vetted before they can take effect.
Most importantly, the brief says, Section 5 is a deterrent. It keeps elected officials from even contemplating voting-related shenanigans, knowing that they will have to prove to the Justice Department that their schemes don’t have a discriminatory effect on minority voters and candidates.
If all that’s true, then not only should covered jurisdictions accept their fate, but the non-covered ones should be asking to join them. Reducing the threat of litigation should be cost-effective for them, too, shouldn’t it?
No one is lobbying, though, to get in under Section 5. For one reason, it is not cheap. State Rep. Mark Baker, a Republican from Brandon expected to run for attorney general in 2015, told The Clarion-Ledger of Jackson last week that when cities and counties draw new voting boundaries, they will spend more money putting together preclearance packets for the Justice Department than on the redistricting itself.
Section 5 is also terribly outmoded.
It uses a 1972 standard to decide who should be covered by the provision. Yes, as the brief from Hood et al points out, there are ways for local jurisdictions to get exempted by proving, to the Justice Department’s satisfaction, that they have permanently reformed. More than 200 have been successful in doing so, including 127 in the past four years. It will take eons at that pace, though, for all of the thousands of jurisdictions now covered by Section 5 to seek and be granted exemptions. Not a single Mississippi jurisdiction has been released from federal oversight.
Besides, Section 5 turns on its head the normal rule of American justice. Preclearance treats every state, county, city, school board and water district in the covered areas as though they are guilty of discrimination until proven innocent. Those opposed to an election-related change don’t have to prove that it will adversely impact minorities; instead, those seeking it have to prove that it won’t.
Twenty years or more ago, there was justification for that kind of disparate treatment. There isn’t anymore.
