Kareem U. Crayton

The Court's NAMUDNO Decision: Judging the Costs and Efficiency of Preclearance

Tuesday, May 26, 2009

The U.S. Supreme Court's final oral argument of the term, in Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder, raised an important inquiry about the efficiency of the Voting Rights Act (VRA). In this column, I address the various factors that should influence such a cost-benefit analysis. I find that a consideration of the evidence in the record shows that the VRA is easily justifiable on grounds of efficiency.

The VRA, and the Issues in NAMUDNO

A crowning legislative achievement of the Civil Rights Movement, the VRA has been an important weapon in ridding the political system of the ill effects of government-sponsored racial exclusion. This law has been credited with incorporating millions of minority voters into the political system, and for establishing rules that guarantee all citizens an equal opportunity to choose preferred candidates.

The focus of NAMUDNO was a key remedy in Section 5 of the Act, called the preclearance provision. Section 5 requires certain states and localities with significant records of racial discrimination to submit new changes in election laws to the federal government for approval. Generally, the review process bars the enactment of laws the purposes or effects of which tend to limit the voting power of minority communities. The specific issue for the Court was whether Congress' decision in 2006 to renew Section 5 was within its enforcement authority under the Fourteenth and Fifteenth Amendments.

Oral argument took a somewhat surprising turn when the local jurisdiction bringing the lawsuit claimed that the preclearance system was unworkable and too burdensome in practice. Section 5, according to NAMUDNO (the utility district that challenged the provision), was too expensive and time-consuming for state and local governments to employ. Even if some sort of federal oversight was appropriate (another point this party contested), the utility district's view was that the system outlined in Section 5 imposed too high a price to pay in pursuit of the law's otherwise laudable goals.

Justice Kennedy's Key Question, and the Solicitor General's Response

Anthony Kennedy, now the Patron Justice of Close Votes, seemed especially sensitive to this concern as he questioned the advocates. As author of the majority opinion in City of Boerne v. Flores (the leading case calling for closer judicial scrutiny of federal enforcement remedies against states), Kennedy was the most closely-watched figure in the courtroom.

One of Justice Kennedy's most pointed questions for the advocates was whether financial costs were relevant in analyzing the "congruence and proportionality" of the preclearance system a key test described in Boerne. Possibly signaling skepticism about the system, he referred to an assertion that states and municipalities spent a total of a billion dollars over the last decade to comply with the federal requirement.

While the Deputy Solicitor General hedged a bit in addressing this question, the costs and benefits associated with this remedial system are surely relevant matters. Amidst all of the public and private belt-tightening in today's economy, even an effective system with an overwhelming cost would be about as defensible as a salary bonus schedule for Wall Street hedge fund managers. As with many cost-benefit analyses, assessing the efficiency of the pre-clearance system is difficult to do with great precision. Nevertheless, the factual record in this case and the record presented to Congress during reauthorization are clear enough to cast great doubt on the accuracy of the figure asserted during the oral argument.

The preclearance system is certainly not cost-free, but its price tag falls far short of the ultra-expensive billion dollars implied by Kennedy's inquiry. That sky-high figure is not only inconsistent with the weight of evidence in the record, but also runs counter to many of the things we know about preclearance specifically and election management more generally.

The High Price of Lawyers: How Large Are Preclearance Costs, In Reality?

First, it's crucial to be precise about the process that NAMUDNO has characterized as so burdensome. As written, both the relevant statutory language in Section 5 and the supporting Department of Justice regulations describe a very simple procedure. To comply with preclearance, an "appropriate authority" in a covered jurisdiction must transmit any proposed changes in election-related laws or practices to the federal government for review.

Importantly, these rules permit but do not require the aid of an attorney. The statute does contemplate that a jurisdiction's "chief legal officer" might manage submissions, but that is not uniformly the case in practice. Some jurisdictions enlist the state attorney general for help, while others opt for private counsel (which is often more expensive). But the only cases that result in litigation (where a lawyer clearly is necessary) are the rare instances when a federal objection is lodged, and the jurisdiction refuses to consider a satisfactory alternative change. More typically, DOJ negotiates with the submitting jurisdictions to avoid expensive and unpredictable legal impasses.

Even with the assistance of a private attorney, though, NAMUDNO's submissions to the federal government have been relatively inexpensive. The joint record in this case shows that an entire year's worth of submissions for the utility district cost just $223 on average (or 0.04% of the jurisdiction's total expenditures for the period between 1986 and 2005). Compared to the thousands of dollars that NAMUDNO spent just on preparing the jurisdictional statement to the U.S. Supreme Court in the present legal challenge alone, shelling out a few hundred dollars each year seems like a pretty favorable bargain.

Moreover, preclearance tends to yield additional efficiencies over time, further obviating the need for high-priced attorneys. Covered jurisdictions are repeat players, after all; they submit multiple proposals over several years. The routine nature of this procedure is the very point emphasized by the five covered jurisdictions that supported Section 5 in Congress, and in an amicus brief filed with the Court in this case. As they become experienced in filing, local officials tend to develop a clearer sense of the type and quantum of relevant data that federal officials desire. Barring a specific DOJ request for additional information, a full review of the jurisdiction's proposal often can proceed without an exhaustive dump of information.

Additional Factors in the Cost-Benefit Analysis: Time and Delay

Time is another key consideration in any cost-benefit assessment. Fortunately, DOJ has made transmitting proposals a speedy task, which limits undue delays in enacting permissible changes in local law. Jurisdictions can send their proposed changes to Washington, D.C. in multiple ways -- via fax, U.S. Mail, overnight courier, or e-mail (presumably an entirely cost-free option). According to the joint record filed in this case, federal officials have even streamlined matters further to help non-lawyers by providing an online template for preclearance submissions. Moreover, DOJ maintains a toll-free phone number to walk the caller through any technical problems related to submissions. Jurisdictions can even request an expedited agency review when the need for a proposed change is more immediate (as in the case of a special election).

The pattern of where preclearance submissions are handled also bespeaks a process that emphasizes timeliness. A submission can follow one of two routes: (1) an administrative review at DOJ or (2) a formal declaratory action filed in the U.S. District Court. While the choice of venue belongs to the jurisdiction, most (including NAMUDNO) select the administrative process largely due to its efficiency. The results of administrative review are reported relatively faster (the statute itself mandates that most decisions occur within sixty days after a submission); it can proceed without attorneys; and it is (for both of these preceding reasons) a less expensive venture than commencing a legal action.

Evidence as to Costs Suggests Justice Kennedy's Billion-Dollar Estimate Is Far Too High

Examining the record as a whole, very little evidence supports the claim that preclearance is as expensive for jurisdictions as Justice Kennedy might believe. If the billion-dollar figure were correct, that would mean that complying with this federal law would cost an average of $100 million each year nationwide (roughly $5 million per covered state, on average). On its face, that proposition is quite suspect based on what we know about the overall cost of election management.

Most preclearance submissions -- at least in part -- involve state officials, whose entire operating budgets to manage statewide elections are only slightly greater than their purported share of preclearance costs. The state legislatures in Alabama, Georgia, North Carolina, and Texas allocated an average of about $6 million each for administering their entire election systems in 2009. It would be surprising indeed if these states would agree to spend even half of their budget allocations to conduct such a simple compliance procedure. The amicus brief submitted by the five covered jurisdictions confirm this point, as they describe preclearance submissions costs as "miniscule."

There are additional reasons to doubt the accuracy of the billion-dollar figure, too based on what is not in the record. Not one member of Congress who opposed the 2006 VRA renewal referred to costliness as a reason for urging defeat of the bill. Instead, opponents of the renewal almost unanimously lamented the impositions on state sovereignty, with a few witnesses describing the extra attention needed to keep track of election changes. But no complaints about the runaway costs of preclearance submission emerged during the committee hearings or in the floor debates.

A market economist might focus on yet another reason why this billion-dollar figure deserves great skepticism. If pre-clearance submissions actually generated that much profit, wouldn't this potential revenue stream have attracted a bevy of private attorneys to fill a market niche? How many private law firms in these states would specialize in preclearance submissions if there really were a share of a multi-million dollar payout at stake? In reality, of course, we see precious few, if any, law firms establishing this kind of specialization in the states and localities covered by Section 5.

The Benefits of Preclearance

None of this, of course, suggests Section 5 is a purely costless enterprise. But shouldn't the costs (whatever they are) be viewed in light of the benefits derived from the system? Ample evidence shows that the gains that preclearance brings to the political system tend to justify its costs.

In point of fact, most state and local jurisdictions have not only accepted, but embraced the preclearance system as both a cost-effective and useful regime. For example, the legislative record from the 2006 renewal includes a joint letter of endorsement from the Council of State Governments, National Association of County Governments, National League of Cities, the National Conference of State Legislatures, National Association of Secretaries of State, and U.S. Conference of Mayors. Maintaining the preclearance remedy, they argued, was crucial to continuing the project of making all levels of government more functional. Their letter also points out that compared to the expenses involved with conducting traditional courtroom litigation, preclearance was a far more preferable alternative for most officials. In short, their judgment is that the system enhances, not impedes, good governmental management.

Testimony from North Carolina state government officials also rebuts claims that the process is too costly. According to these witnesses, county election administrators confirm that making submissions was neither an expensive nor overly-burdensome task. Citing their own experiences, officials actually find that any costs of generating submissions were offset by an important benefit in deliberative politics. Preparing for federal review, at least in some places, helped to establish cross-racial working relationships in the community. Often, these consensus-based endorsements of a proposed voting change help to win DOJ approval. These examples of cooperation reveal another crucial product of pre-clearance--the positive, and even transformative effects that can develop in previously divided jurisdictions.

Perhaps the most important benefit one can cite comes from individuals who can participate in a more inclusive political system because of the VRA. Echoing the amicus brief from the covered jurisdictions, the advocate for the NAACP Legal Defense Fund noted during oral argument that Section 5 assures accessibility and transparency for citizens who have an experience of being shut out of governance. Federal review is a safeguard to prevent similar dilutive or discriminatory practices from ever taking effect again. Without this measure, minority communities could only stop objectionable practices with a traditional lawsuit, long after the offending changes become law. Aside from bearing the expenses of litigating a claim, minority voters would also have to endure years of lost opportunity to choose their preferred candidates. These additional costs could have devastating consequences on political participation at the state and local level, decimating the very benefit that all parties in this case agree is a product of steadfast preclearance enforcement. Given the evidence of past racial discrimination and its ongoing effects in these locations, it seems harsh to supplant Congress' judgment and impose new costs and risks on minority communities -- particularly where there is evidence showing Section 5's continued effectiveness and widespread support.

In sum, Justice Kennedy is quite right to think about the role that efficiency should play in an assessment of the preclearance process. But a fair consideration of both the costs and benefits of this system, in light of the evidence presented to the Court and to Congress, offers plenty of justification for its maintenance.

Kareem U. Crayton is an Associate Professor of Law & Political Science at the University of Southern California.

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