Paging TX, AZ, FL and SC: Granite State Free Ride

Tabella has this explosive story about unequal treatment under Section 5 of the Voting Rights Act by the Justice Department Voting Section.  In short, the DOJ Voting Section essentially ignored New Hampshire, even though it was covered under Section 5 of the Voting Rights Act, just like Texas and South Carolina, where the law was recently used to block Voter ID.  Tabella:

DOJ ignored and failed to enforce Section 5 on a northern state (New Hampshire) who repeatedly failed to comply with the requirements of the Voting Rights Act. Do you think that DOJ would have just ignored Texas failing to submit changes for preclearance or would they have immediately sued?

Do you think DOJ has treated New Hampshire with the same level of review as the Southern Section 5 states, including Florida or North Carolina (who similarly have a small number of jurisdictions under Section 5). Clearly not.

The truth is that Tabella is exactly right.  For years, New Hampshire enjoyed the Granite State Free Ride under Section 5.  CINO - Covered In Name Only.  No energy or effort was devoted to doing serious Section 5 analysis or consideration of "please submit" letters for unprecleared changes.  As Tabella writes, there were three modes of enforcing the Voting Rights Act - states covered by Section 5, states not covered by Section 5, and New Hampshire.

So why does this really matter?  The Granite State Free Ride goes straight to the question of whether Section 5 is congruent and proportional.  If DOJ officials didn't even enforce it against a covered state, then it undermines the argument that the triggers are congruent and proportional.  So if you happen to find yourself in federal court on a Section 5 issue - like Texas, Arizona, South Carolina and Florida do - the fact that DOJ has given a northern state a get-out-of-jail-free pass probably won't sit too well with the plaintiffs states in these cases.  While TX gets beat up by Eric Holder over voter ID, DOJ turns a blind eye toward unprecleared changes in New Hampshire.  While South Carolina has to run a gauntlet, New Hampshire's experience with Section 5 is as tranquil as a July afternoon on Lake Winnipesaukee. 

How does this manifest in court?  A couple of ways perhaps.  Imagine if Texas were to conduct discovery on how DOJ has treated New Hampshire under Section 5.  Imagine if Texas were able to show aggressive selective bias against Texas, but lax enforcement of the law against another covered jurisdiction.  It is hard to believe that would sit too well with Justices Scalia, Thomas... or Kennedy when such extra-legal behavior reaches the high court.

I'll leave it to the litigants from Texas, South Carolina, Arizona and Florida to figure out why else the Granite State Free Ride is relevant to their lawsuits against DOJ.  The Granite State Free Ride is not necessarily good or bad, or worthy of "condemnation," but by golly it is going to be interesting to see what Justice Kennedy thinks of it.

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