Costs associated with Voting Rights Act can vary by case

A Supreme Court decision on a key provision of the 1965 Voting Rights Act could come in June.

The court heard arguments in late February on Section 5 of the Voting Rights Act, which requires Georgia and eight other states with a history of discrimination -- Alabama, Alaska, Arizona, Louisiana, Mississippi, South Carolina, Texas and Virginia -- to get permission, or "preclearance," from the federal government before implementing any changes affecting elections. The provision is being challenged by Shelby County, Ala., and also applies to parts of seven other states.

Opponents of the provision, including Georgia Attorney General Sam Olens, say the blatant racial intimidation and discrimination that existed in voting processes decades ago no longer exist. They also say the formula used to determine which states are covered under the statute is outdated because it is based on voter turnout and registration data from 1972. They also cite the high cost for adhering to Section 5 requirements when states or jurisdictions want to make changes to their elections processes. Georgia was one of several states that filed a "friend of the court" brief supporting Shelby County’s suit. The Justice Department has rejected election changes in Georgia nearly 180 times under the Section 5 provision.

Throughout the challenge, U.S. Rep. John Lewis, a Democrat from Georgia and a civil rights pioneer, has been a crusader for keeping Section 5, and he made his case in an opinion column for The Washington Post a few days before the court arguments.

"Opponents of Section 5 complain of state expense, yet their only cost is the paper, postage and manpower required to send copies of legislation to the federal government for reviews, hardly a punishment," Lewis wrote.

But what about court costs and attorneys’ fees? Did states not have these expenses, too? We wondered whether Lewis’ low-cost compliance analysis was correct.

After years of efforts, particularly in Southern states, to prevent blacks from voting, voting rights battles reached a peak in 1965. Early that year, Lewis and other voting rights marchers crossing the Edmund Pettus Bridge in Selma, Ala., on their way to Montgomery, the state capital, were attacked by state troopers. That attack, along with other violent incidents in the South against blacks and activists, persuaded President Lyndon Johnson to push for a strong voting rights law that eventually became the Voting Rights Act.

Section 5 of the act, including the preclearance review requirement for specific jurisdictions seeking elections changes, was extended in 1970, 1975, 1982 and for 25 years in 2006. The Voting Section of the Department of Justice reviews 15,000 to 24,000 voting changes each year, and receives between 4,500 and 5,500 Section 5 submissions.

Jurisdictions seeking a preclearance review have two options under Section 5: a declaratory judgment process and an administrative review process.

The declaratory judgment process is a court-intensive process that involves the jurisdiction’s filing a motion with the U.S. District Court for the District of Columbia. A three-judge panel hears the request. Any appeals go directly to the U.S. Supreme Court.

The administrative review process is designed to be an expeditious, cost-effective alternative. It involves jurisdictions’ submitting proposed voting changes to the Civil Rights Division of the Department of Justice for review. If the attorney general doesn’t object to the change, or if no objection is filed within 60 days, then the jurisdiction can implement the change. The DOJ provides a list of documents and information jurisdictions must submit for the administrative review, including a reason for the change, the date the change would take effect and contact information for the agency in charge of enforcing the election change. The DOJ reports that more than 99 percent of the changes affecting voting are reviewed administratively.

Administrative review documents can be filed by mail and online.

States choosing the declaratory judgment process first, or after a voting change was denied in the administrative process, can accrue large legal bills. For example, South Carolina spent $3.5 million last year challenging a DOJ rejection of its proposed voter ID law. After taking the case to court, the three-judge declaratory judgment panel ruled in January in the state’s favor and precleared the law for 2013. The federal government was ordered to pay $54,000 of the state’s costs. Texas also appealed a rejection of a redistricting plan. That appeal before the Supreme Court is likely on hold until the Shelby County case is decided.

But several states covered in whole or part by Section 5 -- California, Mississippi, New York, and North Carolina -- support its constitutionality, and in an amicus brief they filed in the Shelby County case, they wrote that "its compliance burdens are minimal."  

Lewis’ office points out that the litigation costs associated with the declaratory judgment process are optional, unless a jurisdiction wants to challenge that decision through a lawsuit.

Lewis’ assessment of the compliance costs is fair, said Myrna Perez, deputy director of the Democracy Program at the Brennan Center for Justice, a left-leaning think tank/advocacy group. Perez has reviewed several elections changes filed by different states.

But Charles Bullock, a political science professor at the University of Georgia who has done studies on the impact of the Voting Rights Act in Georgia, said the administrative review route may be simple and inexpensive for trivial changes, such as moving a polling place from a fire station to a school. With more complex changes, such as redistricting plans, though, even the administrative review route can be complicated and carry indirect costs, he said.

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Georgia spent hundreds of thousands of dollars in legal fees for outside attorneys -- not including work done by internal office staff -- for a federal judicial review of the state’s redistricting plan in 2001. In March 2002, the state Legislature passed a midyear budget that included $1.8 million for legal fees to defend the plan.

"You will have to provide the alternative plans that were considered and rejected, votes on those plans," Bullock said. "I have no idea of the costs, but there is a fair amount of manpower to do this." And that manpower has a cost, he said.

So does Lewis’ claim balance the scales of justice?

Lewis said that opponents of Section  5 of the Voting Rights Act, which requires certain jurisdictions to obtain preclearance from the federal government to implement elections changes, are wrong when they say adhering to the requirements can be expensive. Lewis says the cost is minimal, with states only having to fund the paper, postage and manpower required for submitting the required documents.

For administrative reviews on minor issues, Lewis appears to be correct. The Justice Department provides an administrative process for preclearence submissions that is designed to cut litigation costs. And most of the states choose this option. But that option can be expensive. And there is also another more costly option for states that involves taking the case through the court system, which is likely to require significant amounts of money in legal fees.

Lewis’ claim is partially accurate but leaves out important details about the second review method’s cost for more complex elections changes. For this missing information, we rated his claim Half True.

Staff writer Karishma Mehrotra contributed to this story.