Secretary of State Brian Kemp on Voting Rights Act Section 5 update proposal

Georgia Secretary of State Brian Kemp has written the members of Georgia’s Congressional Delegation about a proposal bipartisan proposal in Congress to place four states back under the pre-clearance requirements of the Voting Rights Act after the United States Supreme Court found Section Five review unconstitutional.

A recent editorial in Wall Street Journal also addresses the proposal.

The old formula required nine states and parts of seven others to have all changes to their voting laws precleared by the Justice Department or a federal court. The new formula would reinstate preclearance for Texas, Louisiana, Mississippi and Georgia for what lawmakers claim is evidence of racial bias in voting laws.

The states were chosen based on a formula that would look back 15 years and include any state that had five or more violations of federal election law, including four findings of jurisdictional problems and one statewide. But the formula fails to take into account broader racial progress in all of those states. Georgia and Mississippi were singled out by the Supreme Court in Shelby County v. Holder for having black voter registration that exceeded white registration. Demerits against four counties in Texas would land a state with 250 counties and more than a thousand cities, including diverse metropolitan areas like Houston and Dallas, back in the penalty box.

That’s an open door to political abuse that is a specialty of this Administration. The Departments of Justice and Housing and Urban Development have misused “disparate impact” statistical analysis to charge racism where none exists to extort money from businesses and override city zoning laws. This is also unnecessary because Section 3 of the Voting Rights Act is still in effect.

The full text of SOS Kemp’s letter is below:

Re: Voting Rights Amendment Act of 2014

Dear Senator Chambliss:

My office has reviewed Representative Sensenbrenner’s proposed bill, and I am writing to register my serious concerns with it.

I have taken the consistent position that any federal laws regarding elections should be uniform throughout the United States. Our Constitution and Section Two of the Voting Rights Act prohibit any form of racial discrimination within the democratic process and apply equally to all states. The Voting Rights Act is still intact and it is my sacred duty to uphold it. I have full faith that the State of Georgia will continue to abide by it. The proposed legislation ignores the tremendous progress that Georgia and the rest of the nation have made in the past 50 years and seeks to reinstate an outdated and obsolete formula that would cost Georgia taxpayers a significant amount in time, resources, and money.

Georgia would be subject to pre-clearance under the proposed bill due to previous “voting rights violations” of Section 4 of the Voting Rights Act—the section that was struck down as unconstitutional in Shelby County v. Holder. However, these “voting rights violations” are not limited to findings of discriminatory intent. They include any instance where the Department of Justice—under the old, unconstitutional formula—interposed an objection that was not later overturned by a court. Basing pre­clearance off of past objections with no findings of discriminatory intent attempts to resurrect an unconstitutional system. The proposed bill also enshrines the controversial “disparate impact” standard, meaning that states or localities could find themselves under federal control even when there is no evidence of discriminatory intent.

Our research indicates that the “violations” that would place Georgia back under pre-clearance are not state laws that were found to be discriminatory. Rather, the “violations” refer almost exclusively to city or county redistricting plans or other minor changes. To subject an entire state to the administrative and financial burdens of pre-clearance based on these objections is a remedy in search of a wrong.

I also understand that the proposed bill drastically lowers the standard for litigants seeking a preliminary injunction, allowing political interest groups to control whether our state can implement its own laws and costing our taxpayers significant time, money, and resources.

Pre-clearance was an extraordinary remedy for an extraordinary time. Putting Georgia back under pre-clearance will subject our state to significant financial and administrative burdens, and these burdens are not necessary to prohibit racial discrimination in our democratic process. As Georgia’s chief elections official, it is my sacred duty to uphold secure, accessible and fair elections. Pre-clearance does not help us achieve that goal.

Sincerely,

Brian P. Kemp

Click here for a .pdf of the letter.