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New Hampshire Wants Voting Oversight To End


When it comes to civil rights battles, your mind might naturally wander south, to places like Alabama or Mississippi; which makes the legal fight playing out in New Hampshire seem unusual. The state is trying to get out from under federal oversight of its voting procedures. And the outcome could resonate in a major, upcoming Supreme Court case on voting rights. NPR's Carrie Johnson has more.

CARRIE JOHNSON, BYLINE: So how did New Hampshire come to be covered under the landmark Voting Rights Act to begin with? To find out, I went to Gerald Hebert, a lawyer for the state. He says back in the 1960s and '70s, a couple of factors came into play.

GERALD HEBERT: One was whether or not you had a test, or a device, that was used to register voters. And New Hampshire, even though it wasn't enforcing a literacy test at the time, did have one as part of its state constitution.

JOHNSON: The second factor was a voter turnout formula that dates back decades, Hebert says.

HEBERT: And because 10 of the towns - very small towns - had less than 50 percent of their voters show up at the polls in the presidential election in 1968, 10 of the towns got covered.

JOHNSON: Under part of the Voting Rights Act known as Section 5, New Hampshire was forced to get preapproval from the U.S. Justice Department before it made any election changes, big or small. The goal was to prevent discrimination at the ballot box. Decades passed, and New Hampshire finally applied to shake free of those requirements, in a process known as bailout. That's where things get a little confusing. Terry Pell is president of the Center for Individual Rights, a conservative public interest law firm.

TERRY PELL: Section 5 is very strict about the requirements that have to be met before a state can bail out. A state has to have a perfect record.

JOHNSON: New Hampshire did not have a perfect record. The state didn't get permission, or pre-clearance, for about 90 election changes over the years; something the Justice Department didn't consider to be a big deal. But the Center for Individual Rights did. It found a registered Republican in the state to intervene, to try to scuttle the agreement. Terry Pell.

PELL: What is clear is that our client thinks that Section 5 should continue to be enforced in New Hampshire, and he's seeking to make sure that that happens.

JOHNSON: Over the past few years, 10 lawsuits from around the country have tried to get Section 5 of the law thrown out, as unconstitutional. Tom Perez runs the civil rights unit at the Justice Department. He talked about the cases recently, at the University of Baltimore Law School.

TOM PEREZ: These lawsuits claim that we've attained a new era of electoral equality; that America, in 2012, has moved beyond the challenges of 1965 and that Section 5 is no longer necessary. I wish that were true.

JOHNSON: The Center for Individual Rights has been involved in some of those cases, so why is it trying to prevent a bailout in New Hampshire? Gerry Hebert, the lawyer for the state, says he has an idea.

HEBERT: The center is really orchestrating an effort to stop New Hampshire from bailing out because they think it'll hurt their chances in the Supreme Court, which has a case pending right now - out of Shelby County, Alabama - to get the Voting Rights Act declared unconstitutional.

JOHNSON: Let's unpack that a bit. The Supreme Court will hear argument later this month, in the Shelby County case. A central issue there is whether those voter turnout formulas from the 1960s and '70s are so old that the law is no longer valid. Hans von Spakovsky is a fellow at the Heritage Foundation, and a critic of the law.

HANS VON SPAKOVSKY: If you use that triggering formula, of course none of the states in the South today that are covered - like Georgia, Mississippi - would be covered. Why? Well, because today, the voter registration and turnout rates of black voters is not just the equivalent of white voters; in some states, it's actually higher than that of white voters.

JOHNSON: New Hampshire has few minority voters. But it's become a symbol of the national debate on voting rights, with both sides arguing the other is playing games. Von Spakovsky.

VON SPAKOVSKY: The only reason for Justice to agree to this is because they want to use this as a tactic in the Shelby County case before the Supreme Court.

JOHNSON: By granting bailouts to places such as New Hampshire, von Spakovsky says, DOJ can say it's giving states an escape hatch from federal oversight, so there's no need for the Supreme Court to throw out the law. Gerry Hebert.

HEBERT: After all, if a state can exempt itself from the pre-clearance requirements - as New Hampshire has demonstrated it's entitled to - then I think it probably shows that many of the covered jurisdictions may well be bailout-eligible.

JOHNSON: Leaving the law on the books, he says, for the places that need it most.

Carrie Johnson, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Carrie Johnson is a justice correspondent for the Washington Desk.