On Monday, the Supreme Court ruled 8-1 to sidestep the constitutionality questions raised in the “pre-clearance” clause of the Voting Rights Act (VRA).

This serves important for California because the pre-clearance clause of the Act affects four of its counties: Yuba, Merced, Monterey and Kings.

The Voting Rights Act, signed by President Lyndon B. Johnson in 1965, requires all, or parts of, 16 states with a history of discrimination in voting to get approval in advance of making changes in the way elections are conducted.

This recent ruling does not, however, overturn the VRA but did leave room for all electoral entities to have the right to challenge the “pre-clearance” provision.

The Court ruled that the Northwest Austin Municipal Utility District No. 1 in Austin, Texas, can opt out of the advance approval requirement, reversing a lower federal court that found it could not.

Section 5 of the VRA requires that the United States Department of Justice, through a declaratory judgment action, “preclear” any attempt to change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting …” in any “covered jurisdiction.”

The Supreme Court gave a broad interpretation to the words “any voting qualification or prerequisite to voting” in Allen v. State Board of Election, 393 U.S. 544 (1969).

This is where California counties come into play.

Given this broad interpretation, four California counties were assigned to federal pre-clearance because of military bases they had within their jurisdiction. These bases were filled with many out-of-state voters and therefore the federal government deemed it necessary to monitor their voting procedures.

Brian Landsberg, Constitutional Law professor at Pacific McGeorge School of Law, said these California counties were already available for pre-clearance bailouts.

“California Counties were already eligible to file bailout suites. Yuba County filed one over 30 years ago and the Department of Justice refused to agree with their complaint and dismissed their suit,” stated Landsberg. “I’m not sure that it really has much affect on California jurisdictions,” Landsberg said.

For Landsberg, the bigger question raised is why these counties haven’t filed for a bailout already. He gave some reasons:

“There are some advantages of begin covered by the Act. For instance, if a jurisdiction wants to take race into account in order to increase minority representation the VRA might give them more basis for doing that,” Landsberg said.

“The other possibility would be that a bailout suit would be fought and that they could lose. That combined with having to prove no discriminatory activity at all with the large legal costs inferred present a difficult situation.”

Landsberg believes that had the Justices decided conversely, then the whole situation would be viewed differently.

“The eight justices did not reach the constitutionality question in the pre-clearance clause,” Landsberg stated. “If the case had gone the other way and the Court had said Section 5 was unconstitutional then all pre-clearance restrictions would have gone away”

Karen Adams, County Clerk/Registrar, for Merced County, said that she understands the law given the large amount of military personal at Merced’s Castle Air force Base; however, she sometimes finds the law questionable.

“I understand the law because we don’t want to disenfranchise voters,” stated Adams. “However, sometimes the law hinders our process in obtaining polling places and getting strong voting turnouts and that’s when we question it,” Adams affirmed.

When asked if Merced County might take the new opportunity to apply for exemption of the pre-clearance oversight, Adams said the jury is still out on that one.

“I understand there is an opportunity to apply to get out of this provision but I don’t know how difficult the argument would be to do that,” stated Adams. “We may consider it sometime in the future,” Adams concluded.

Ken Baird, the County Clerk-Recorder for Kings County, said that his county had tried to get out of the pre-clearance procedures once before.

“A few years ago we tried to get out but it was so expensive and cumbersome that we just dropped it,” Baird stated.

Baird stated that part of the reason Kings County found itself under the pre-clearance issue was because at one time California had an English-only voting ballot.

Given the large amount of Mexican-Americans in California, the ballots had to be changed, and now come in a variety of languages.

Baird concluded that in his best estimation Kings County would no longer look for a bailout opportunity.

“My guess is that this ruling won’t really affect out process of looking at a bailout,” Baird concluded.

However, Gail Pellerin, Vice President of the California Association of Clerks and Election Officials, said when asked if California counties would be acting differently given this ruling, she had a differing response:

“Kings County did say they would be working with county counsel on this,” Pellerin stated.

When confirming their position, Kings County Counsel, Peter Moock, said that applying for a bailout was not a current option.

“I don’t think at this point we’re evaluating that option,” Moock stated.
Monterey County Registrar of Voters, Linda Tulett, said that for her, no changes would arise.

“As of now we will follow pre-clearance requirements that we’re under,” stated Tulett.

Finally, when asked why Monterey County even fell under the VRA requirements, Tulett responded simply, “I don’t know exactly why we’re under these preclearance procedures.”

The court’s lone African American Justice, Clarence Thomas, stood as the only dissenter saying he would have ruled the VRA unconstitutional.

Thomas wrote that while he agrees with the court’s judgment, it is too narrow. He would have gone a step further and held that the pre-clearance provision is unconstitutional.

Andrew Carico can be reached at acarico@publicceo.com