Alaska AG files suit over federal 'preclearance' requirement

By Jessica M. Karmasek | Aug 23, 2012




JUNEAU, Alaska (Legal Newsline) - Alaska Attorney General Michael Geraghty filed a lawsuit in federal court this week, seeking a declaratory judgment that two sections of the federal Voting Rights Act are unconstitutional.

Geraghty sued on behalf of the state in the U.S. District Court for the District of Columbia Tuesday. U.S. Attorney General Eric Holder is the named defendant.

In the 16-page complaint, the state is seeking a declaratory judgment that Sections 4 and 5 of the VRA of 1965, as amended in 2006, are unconstitutional -- both facially and as applied to Alaska.

The state also is seeking injunctive relief preventing enforcement of the two sections of the act.

The VRA was enacted by Congress in 1965 to enforce the Fifteenth Amendment in the face of persistent voting discrimination against blacks, primarily in the southern states.

Section 4 established a factual test to determine which states or political subdivisions within a state were covered by Section 5's remedial provisions. It included all states and political subdivisions where a test or device was used as a prerequisite for voting and less than 50 percent of voting age residents voted in the 1964 presidential election.

Section 5 requires that the "covered jurisdictions" must submit any changes in their voting laws or procedures to the U.S. Department of Justice for "preclearance" before the change can be implemented.

The purpose of this section is to prevent covered jurisdictions from replacing discriminatory and invalid voting laws with new discriminatory enactments.

The VRA included "bailout" provisions that permit a covered jurisdiction to escape the requirements of Section 5 if specified criteria are met.

Alaska bailed out of coverage in 1966 without objection from the justice department.

The VRA then was renewed in 1970, and the coverage formula was updated to include data from the 1968 election. Alaska again became a covered jurisdiction, but again bailed out without objection from the justice department.

Five years later, the act was renewed again.

At that time, Congress amended the VRA to expand the scope of the act's protections to "language minorities."

Section 4 of the 1975 VRA designated as a covered jurisdiction any state for "which the attorney general determine[d] maintained on Nov. 1, 1972 any test or device, and with respect to which the director of the Census determine[d] that less than 50 per centum of the citizens of voting age were registered on Nov. 1, 1972, or that less than 50 per centum of such persons voted in the presidential election of November 1972."

The section also defined "test or device" as used in the first part of the test to include "any practice or requirement by which any state or political subdivision provided any registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots, only in the English language, where the Director of the Census determines that more than five per centum of the citizens of voting age residing in such State or political subdivision are members of a single language minority."

Pursuant to the 1975 VRA, the attorney general and the director of the Bureau of the Census determined that Alaska was a covered jurisdiction based on the state's native population and the fact that "English only" voting materials were used in 1972.

In 2006, the VRA was reauthorized.

In particular, Congress reauthorized the 1975 coverage formula that had swept Alaska within its reach.

"But Congress had almost no evidence of discriminatory voting practices in Alaska," Geraghty wrote in the federal complaint.

"The scant evidence about Alaska that did exist in the congressional record is manifestly insufficient to justify Congress' inclusion of Alaska as a covered jurisdiction.

"No evidence before Congress indicated that Alaska should be counted among those jurisdictions where voting discrimination has been most flagrant. Indeed, no such evidence exists."

Alaska's largest minority population is Alaska Native.

According to 2010 Census data, there are 104,871 American Indian and Alaska Native residents.

The attorney general noted in the suit that even before passage of the VRA, the state was committed to ensuring that every eligible voter can effectively participate in its elections.

"Alaska's commitment and responsibility to ensure that every eligible voter can effectively participate in Alaska's elections is independent of Section 5 of the VRA," Geraghty wrote, adding that over the last 30 years the state's Divisions of Elections has made nearly 500 preclearance submissions to secure the necessary federal approval to implement changes in state election laws and practices.

However, Section 5's preclearance requirement is "onerous" and "time-consuming," creates uncertainty and delay, and places the state's elections "at the mercy" of justice department attorneys, the attorney general said.

"Alaska 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," he wrote.

The preclearance requirement, he continued, denies Alaska the "flexibility" and "autonomy" necessary to run its elections and prevents the state from adjusting its election procedures as necessary to respond to "urgent, unforeseen" circumstances.

"For example, if a polling location is damaged or inaccessible due to weather conditions on election day, the need to obtain preclearance would prevent Alaska from lawfully moving the polling place to an accessible, safe location," Geraghty wrote.

The case has been assigned to Circuit Judge Robert L. Wilkins.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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