N.H. man tries to save Voting Rights Act in order to kill it

“Friends, Romans, countrymen, lend me your ears; I come to bury Caesar, not to praise him.” – Mark Antony, “Julius Caesar.”



“The first thing we do, let’s kill all the lawyers.” – Dick the Butcher, “Henry VI, Part II”



Forgive me if the latest legal tussle over the Voting Rights Act reminds me of Shakespeare. I can’t decide if it’s tragedy or farce.

On one side, a group seeking to overturn an outdated section of the law is trying to keep New Hampshire from getting out from under its ridiculous restrictions. On the other, supporters want to let New Hampshire escape to make it easier to keep other states under federal jurisdiction. The whole thing is turning an already obscure legal battle into something silly.

Section 5 of the Voting Rights Act of 1965 requires that all or part of 16 states have to preclear any changes in their election laws with the Justice Department. The law was meant to prevent the return of Jim Crow laws in the Deep South, but due to abnormally low voter turnout in the 1968 election, 10 New Hampshire towns have been covered for the past four decades.

For more three decades, New Hampshire ignored the law. We never sought preclearance to change the voting hours in Antrim, Boscawen or eight other towns, or for changes in state law that affected those towns. Getting off the U.S. Department of Justice’s list was time-consuming and expensive, so we never bothered. And the federal government never seemed to care.

In 2009, the U.S. Supreme Court found that the Justice Department had ignored provisions in the law that let covered jurisdictions “bail out” of Section 5 by demonstrating that the states were not attempting to suppress minority votes through their election laws. But the court stopped short of addressing whether such strong federal intrusion into state election laws was still constitutionally justified.

Protest from Alabama

Now, Shelby County, Ala., is suing the Justice Department and asking the court to throw out Section 5 altogether. Suddenly, U.S. Attorney General Eric Holder has found a newfound interest in helping states bail out, including New Hampshire.

Critics think that Holder is pushing through state bailouts in order to fool the court on the ease with which states can exercise that provision. So they’re stepping in to block New Hampshire’s attempted bailout.

The Center for Individual Rights has filed a motion to intervene on behalf of New Hampshire voter Peter Heilemann, arguing that his voting rights would be harmed if the Justice Department stopped reviewing New Hampshire’s election laws before they went into effect.

They make this perverse argument to keep the law in effect in New Hampshire in order to strengthen their case that it should be thrown out entirely.

We haven’t complied

Holder’s Justice Department is being exceptionally generous to New Hampshire’s case. A key requirement of the bailout provision is that the covered jurisdiction had complied with the law from the beginning. We haven’t. We ignored it completely. The Department of Justice could rightly insist that New Hampshire has no right to escape Section 5 since it spent more than 30 years flouting it.

Common sense would dictate that New Hampshire get out from under the thumb of federal election officials. Our place on the list is an anomaly, unrelated to any historic disenfranchisement of minority voters. Removing those 10 towns would excise a vestigial piece of law that everyone was content to ignore for most of its history. That it took so long for anyone to notice our failure to comply with Section 5 is the best proof that we don’t need it.

Nor does New Hampshire’s bailout necessarily weaken the Shelby challenge. Its lawyers could easily point out Justice’s hypocrisy in selectively enforcing the Voting Rights Act in some states, while ignoring it in others. Such arbitrary and capricious actions have doomed federal laws before.

But we’re talking about politics and the law, not common sense. Our tiny state is being used by both sides. Holder wants to let us out in order to show the law is being enforced in line with current conditions. Opponents of the law want to show how anachronistic it has become.

It’s not 1964 anymore, in Alabama or New Hampshire. States shouldn’t need to get federal permission before updating their election laws. If anyone tried to bring back Jim Crow, the rest of the Voting Rights Act would still be there to stop them.

Support for the outdated Section 5 preclearance procedure seems a thinly veiled attempt by a Democratic administration to hang on to federal power over elections in several Republican states.

But Eric Holder insists that the Section 5 of the Voting Rights Act is still necessary. And Eric Holder is an honorable man.



(Grant Bosse is editor of NH Watchdog, an independent news site focusing on New Hampshire public policy.)