Landmark Supreme Court voting rights debate will have California impact

McClatchy NewspapersFebruary 22, 2013 

WASHINGTON A Merced County legal victory has unexpectedly pulled it into one of the biggest Supreme Court cases in years.

The county’s 2012 triumph was to successfully bail out from federal control under the Voting Rights Act. But now some conservative skeptics charge that legal victory was tainted by Justice Department politics. The claims, in turn, compelled the county to invest in a Supreme Court brief to defend itself in advance of a key court argument on Wednesday.

“The county was surprised to become a subject of discussion in the (voting rights) case,” Merced County Counsel James N. Fincher said Friday. “One of the reasons the county chose to pursue the bailout was to avoid being a political football in unrelated legal battles.”

The bailout, or escape, from certain Voting Rights Act obligations means Merced County and some 84 political entities included within it, from school districts to city councils, no longer need Justice Department permission before making voting-related changes. A three-judge panel approved the bailout in August 2012, after the Justice Department assented following a two-year study.

“Assertions that Merced County was not eligible for the bailout are incorrect,” declares the brief, for which the county hired the San Rafael-based firm, Nielsen Merksamer Parrinello Gross & Leoni.

The county’s 49-page brief was one of about 50 so-called amicus briefs filed in the case.

The Voting Rights Act case, called Shelby County v. Holder, has attracted more of such debate than most cases because the stakes are so high. The Alabama county is challenging a key provision in the 1965 voting rights law, which requires approval by Justice before any changes to local voting procedures.

Nine states are covered by the provision in their entirety, and seven states, including California, are covered in part. Merced County fell under the law in 1975 because of a combination of English-only ballots and low 1972 voter turnout that county officials attribute to the large transient military population at the former Castle Air Force Base.

The requirements in Section 5 of the act, referred to as preclearance, cover everything from the purchase of new voting machines to the redrawing of new political boundaries. The law, though, also includes an out. If a covered jurisdiction can show that it hasn’t engaged in discriminatory practices during a 10-year period, it can escape preclearance, just as Merced County and about 190 other jurisdictions have.

“Congress included a structure that has a door that swings both ways,” NAACP Legal Defense and Education Fund President Sherrilyn Ifill said Friday.

Voting Rights Act skeptics counter that the law’s preclearance section is too rigid and dated, and some contend recent bailout approvals were stage-managed to show Supreme Court justices that the law is flexible.

“The Department of Justice now thinks a flurry of bailouts, some of them obtained improperly, will convince the Supreme Court that Section 5 is not much of a burden and should survive,” former Justice Department official J. Christian Adams wrote last December, adding that Merced County was “ineligible for bailout.”

Similar arguments have been made in National Review Online and in legal pleadings, with conservatives specifically criticizing the bailout expert hired by Merced County, attorney J. Gerald Hebert.

The attacks, in turn, prompted Merced County to spell out the bailout details dating back to 2009. These specific efforts ranged from county officials twice flying to Washington, D.C., to numerous interviews with local residents, and a sweeping search to determine past compliance with the preclearance requirements.

“I will not speculate as to the Justice Department’s motivations,” Fincher said, but “Merced County’s bailout was justified on the law and facts.”

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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