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Skepticism Persists in Voting Rights Act Bailout Debate

City leaders pushing for an exemption to federal oversight of local voting practices face tough questions during public meeting.

Fredericksburg officials say that the push to bail the city out of federal oversight of its municipal election operations would save the city $1,500 per year in administrative costs. However, to obtain such a bailout will run the city around $3,500 in legal fees paid to Gerald Herbert, the civil rights attorney the city has hired for the proceedings. This information was revealed during a question and answer session at an unusual meeting of the municipal electoral board last night at the Central Rappahannock Regional Library theater on Caroline Street. 

About 30 residents gathered there to hear a presentation by the electoral board which saw city staff try to clear up perceived misconceptions of the voting rights act bailout which city officials intend to seek from the Department of Justice. The bailout push is attracting significant attention from Fredericksburg's older black community, many of whom remember the days before the Voting Rights Act and the struggles they endured to secure their civil rights. 

Under Section 5 of the 1965 Voting Rights Act, municipalities in states with a history of systematically suppressing minority voters are required to obtain the approval of the Department of Justice for any change to local voting procedures. Since 1982, cities have been able to opt out of the oversight requirements if they could show they had not attempted discriminatory electioneering in the past 10 years. Officials from the Department of Justice declined to appear at last night's meeting. 

The City's Argument

City officials say that Fredericksburg has advanced beyond the need for such oversight, and that the bureaucratic burden which it imposes unduly costs the city money and stifles innovation in the city's elections offices. City officials painted a picture of a bureaucratic nightmare of a two month preclearance procedure which they have had to endure at least once a year for the last five years. By law, the Department of Justice has to respond to a preclearance request within 60 days. 

"We are pushing to accommodate voters more easily," said Juanita Pitchford, voter registrar for the city of Fredericksburg. "If we have to get another voting machine, even just 1 voting machine, I have to go through preclearance."

In response to questions from the audience, Herbert specified that burden, saying that the labor costs incurred by dealing with the preclearance paperwork amounts to about $1,500 per request. 

Herbert also argued that the preclearance requirements skirt the limits of the Constitution. 

"This process raises serious constitutional concerns via the concept of federalism and the separation of federal and state powers," said Herbert, who cited recent court cases challenging the constitutionality of preclearance winding their way through appeals courts. "It will likely be held unconstitutional by the Supreme Court we have now because the formula has never been updated since 1964. If your state had a poll tax and if in 1964's presidential election, if less than 50 percent who were registered to vote, or 50 percent of the voting age population didn't vote in that election, then you'd be subject to [preclearance]"

Herbert stressed that the bailout would not nullify any other aspects of the voting rights act in Fredericksburg. This was a common theme among the presenters for the city, who said they were battling misconceptions about the bailout. 

"No matter what happens with regard to bailout, there is still a federal law which says that you can't discriminate on the basis of race, color or language group," said Hebert. 

The voter registrar for Essex County, Marnie Hughes, was on hand to address some of the perceived misconceptions. In 2007, she helped guide Essex County through a successful bailout process. 

"If there is one person in your town who thinks that bailout will remove their right to appeal to the department of justice, you need to clear up that misunderstanding," Hughes told the audience. "That is a basic right, it never goes away. Our bailout could be pulled in about 30 seconds if we were found guilty of a voting violation." 

Hughes also spoke to the benefits of bailing out of the oversight requirements. 

"It saved us much money, much time," said Hughes. "It has saved a great deal of money for essex county to be bailed out."

Skepticism, Questions Abound In Black Community

 Members of the audience were openly skeptical about the perceived cost benefits, saying that the layer of protection afforded by the oversight may be worth the money to prevent future violations of civil rights. 

"The fact that nothing has happened in 10, 20 years, it might be that it has served as a deterrent," said NAACP member Col. Horace McCaskill. "Deterrence costs money, like our national defense costs money."

Howard Pigee, Jr., said he moved to Fredericksburg from Illinois in 2009 so that he would be living in a jurisdiction with federal voting oversight. He criticized the cost benefit analysis, noting that the $1,500 in costs to process a preclearance request were already budgeted for in the annual salaries of the city staff which handle them. For Pigee, the $1,500 was a reasonable upkeep to pay for a more solid guarantee of civil rights. 

The idea of doing away with the oversight protections also raised concerns that such a move would give way to a slippery slope regression into racially biased voting procedures. 

"The problem comes when, people in my age group and older, we remember what it was before the voting rights act," said Sean Lawrence, member of the Fredericksburg Planning Commission. "When you use the term bailout, you get the sense that you are starting to chip away at that. There's this fear, that this is just the start."

"I'm thinking that if we lose [the oversight], that we will get back to doing things the old way," said Marguerite Young, a Fredericksburg resident since 1957, after the meeting. She moved here from Alabama and remembers having to pay a poll tax and take a literacy test to register to vote there. She made clear that her fear of regression did not rest with the current municipal voting staff. 

"How about later, when they are not in charge," said Young. "Why not have oversight then?"

The issue of how to get more community involvement in the bailout process was also raised. Former City Council member Matt Kelley criticized city leaders for not forming a citizens advisory commission to work with city staff during the bailout proceedings over FOIA burden concerns. City Attorney Kathleen Dooley  and Assistant City Manager Mark Whitley encouraged members of the public to create their own independent advisory commission to lobby city staff and City Council as they go through the bailout. As an independent body, the group would not be subject to FOIA laws which they argued would bog down the community dialogue. 

In summing up the meeting, former Ward 4 representative and current president of the Mayfield Civic Association, Hashmel Turner said he thought it the meeting was productive.

"It was informative. We are seeking more information to get a better understanding of the bailout," said Turner. "I think the concerns are justifiable, because of what had been acquired with preclearance. We don't want to lose any ground."

Bailout 101

 A locality may apply for a bail out from section 5 of the Voting Rights Act if it can show that it has not engaged in any discriminatory polling practices over the last 10 years. A locality subject to preclearance must get approval from the Department of Justice before any changes can be made to a wide list of elections activities. In order to apply, officials have to submit information on voter turnout, the racial makeup of the city's elected leadership, and poll worker training to the Department of Justice for review. Once granted, a locality is then under a 10 year probationary period. In that time, if the locality commits a single discriminatory voting violation, then the preclearance bailout is revoked. If after 10 years the locality has remained in good standing with the Department of Justice, the locality is free from the preclearance requirements. Bailouts can also be subject to provisional agreements, like notifying community associations of voting changes. 

Since the Voting Rights Act was amended to allow for bailouts in 1982, 65 localities have taken advantage of the exemption, including 17 Virginia localities. Six more Virginia localities have  bailout requests pending. 

 Fredericksburg has not yet applied for the bailout, but city officials have notified the Justice Department of the intent to apply for it. 

Matthew Kelly March 24, 2011 at 12:04 PM
So if setting up a citizen's group creates problems with advertising open meetings, keeping minutes, and making all e-mails related to the committee's business open to public viewing then under what guideline will the group who actually puts together the bailout agreement be operating under? And who will be at the table making the decisions regarding the bailout agreement? I do believe the bailout is a good idea however understanding the history behind the Voting Rights Act it is very important that this is an open community discussion with all suggestions and concerns being addressed in a public forum.
Michael Theis March 24, 2011 at 12:33 PM
Yeah, I should also point out than an early version of this article had an error in it. The legal fees incurred to obtain the bailout were incorrectly noted and have since been updated.

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