D. Modern Disfranchisement in Georgia

Arizona's Proposition 200 is not an isolated illustration of modern racial discrimination in voting laws. In 2008, Georgia's Office of the Secretary of State developed a citizenship-verification program that cross-referenced Department of Driver Services databases against voter-registration data. The aim of this program was to identify and flag registered voters whose citizenship had not been verified between the two systems. Any such voters would be notified accordingly and required to take additional steps to verify their registration before being permitted to vote.

A Georgia resident and various minority organizations sued the state for administering this program prior to obtaining section 5 preclearance. A district court issued a preliminary injunction in late October 2008, just in time to suspend the program's effects for the 2008 elections. The court extended the injunction in 2010 but denied both parties' motions for summary judgment, in anticipation of the Justice Department's preclearance determination.

In fact, the Justice Department had already issued a conclusion regarding Georgia's citizenship-verification program. In May 2009, the Department addressed a letter to Georgia's attorney general objecting to preclearance for the program. Georgia, the letter stated, had failed to sustain its burden of showing that the proposed change neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race, color or membership in a language minority group. The Department found not only that the additional requirements would pose considerable obstacles to flagged individuals but also that the system was inaccurate and overinclusive, having wrongly flagged thousands of Georgia citizens who were, in fact, eligible to vote. More significantly, of those wrongly flagged, 45.7% were naturalized citizens. The Department further determined that Hispanic and Asian voters were more than twice as likely to appear on the list than white voters and that 60% more black voters were flagged than white voters, despite comparable registration numbers.

After reconsideration and a second denial by the Justice Department in February 2010, Georgia filed suit in the U.S. District Court for the District of Columbia to challenge the decision. The case was settled abruptly in August 2010 when the Justice Department precleared the citizenship-verification program and requested that the district court dismiss the case. Many speculated that the Department folded to avoid Georgia challenging not only the preclearance denial but also the constitutionality of section 5 itself.

In the meantime, Georgia introduced Senate Bill 86 (SB 86) in 2009, a bill cut from the same cloth as Arizona's Proposition 200, requiring residents to provide proof of citizenship upon registering to vote. Like the citizenship-verification program discussed above, SB 86 was also implemented without having been submitted for preclearance. In the wake of two administrative preclearance denials by the Justice Department over the citizenship-verification program, Georgia proceeded directly to an action for judicial preclearance of SB 86 in the U.S. District Court for the District of Columbia. That case was dismissed in 2011 when the Justice Department granted Georgia preclearance for SB 86.

Undoubtedly, Georgia will face further litigation over SB 86. Like Proposition 200, SB 86 has the potential to disproportionately burden minorities and the elderly. Furthermore, the lengthy preclearance process over Georgia's citizenship-verification program has brought the state's voting measures under intense scrutiny by minority organizations. Already, this issue has attracted the attention of high-profile groups, like the NAACP and the ACLU, in addition to local organizations, like the Georgia Association of Latino Elected Officials.

Despite the situation's similarities to the Gonzalez litigation, however, it carries the potential for a notably different outcome. At the Ninth Circuit in Gonzalez I, the court neglected to rule on a vital challenge to Proposition 200--whether the measure disproportionately burdened naturalized citizens--because no affidavits had been filed by naturalized citizens. Plaintiffs in this case are unlikely to make the same mistake. For one, Georgia's premature implementation of the contested voting procedures has allowed ample time for opponents to collect data regarding SB 86's effects on minorities. Also, legislation such as Arizona's more recent immigration bill has likely cultivated heightened sensitivity to such issues since Gonzalez II. Without a firm precedent weighing in favor of such procedures against the burden they present for naturalized citizens, Georgia may find it difficult to overcome a comparable challenge to SB 86. And in the course of such a challenge, Georgia would also have to defeat the Justice Department's findings that its data-comparison system disproportionately burdens minorities and naturalized citizens at statistically significant rates.

The resolution of the Georgia cases will be important on a number of levels. As section 5 case law stands, laws like Arizona's and Georgia's that target immigrant and minority populations are almost sure to fail the retrogression test. By injecting additional administrative steps in the way of minority and immigrant voters, these laws and others like them are in direct conflict with section 5's effect prong. Certainly, the Justice Department's statistical findings and continued opposition to the citizenship-verification program suggest the program's discriminatory effects. Furthermore, Proposition 200's context and sponsorship could support a finding not only of discriminatory effects but also of discriminatory purpose.

The Georgia and Arizona examples are not meant as exercises in whistle-blowing, however. Both states had legitimate motives for their laws; certainly, the states should be able to ensure that registered voters are citizens. Yet, presented with such abundant evidence that the chosen measures present unequal obstacles to minorities and naturalized citizens, it seems obvious that the interests of those populations are not currently a legislative priority. It is in this capacity that section 5 has functioned and continues to function in its intended role.

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Section 5 was originally embraced because of the crisis it was intended to resolve. The widespread disfranchisement of black southerners was a concrete issue the country could readily tackle. Today's problems are more abstract: America's minorities are no longer exclusively black, and discrimination against them is not exclusively Southern. As this Comment has demonstrated, however, the metamorphosis of discrimination does not signal its end. In addition to the structural inequalities minorities have always faced, they are increasingly the casualties of a tense political and economic environment, and of a raging partisan power struggle. America's minority population is growing, and with its growth rises the percentage of the population whose access to meaningful participation in the electoral process would be threatened by the abolition of section 5--the VRA's most important, and most endangered, provision.

Scholarly and judicial skepticism of the continued need for section 5 are based largely on an understanding of the provision as a product and solution confined to the Jim Crow South. This interpretation is not only oblivious to the modern sources and victims of disfranchisement but also directly in conflict with Congress's continued commitment to section 5. Congress has demonstrated its intentions with respect to section 5 by renewing and expanding the provision at each term, extending protection to language minorit[ies] and ensuring that access to a vote encompasses access to a meaningful vote. In these respects, section 5's work is not done.

To some degree, section 5's critics are correct; despite congressional attempts to update the statute in light of demographic and political changes, the statute still does not adequately reflect the problems it was intended to resolve. Rather than abolish section 5, however, this Comment advocates reorienting the VRA's provisions to render section 5 more receptive to the needs of minorities and more resistant to partisan influence. As signaled by NAMUDNO and Perry, the resolution of this issue is imminent. The approach suggested by this Comment would resolve both the practical and constitutional concerns surrounding section 5 and reinvigorate the country's dedication to achieving equality in voting.