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July 20, 2013
Foon Rhee: Who will safeguard voting rights now?

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(July 20) A couple of weeks before the 2004 presidential election, Luis Alejo found out that the only polling place in Pajaro - a poor, largely Latino farming community just outside Watsonville - wasn't going to open. To vote, several hundred residents would have to trek nearly 10 miles to Aromas, without easy public transit.

Then a lawyer with California Rural Legal Assistance, Alejo warned the Monterey County Elections Office he would file a complaint under the landmark federal Voting Rights Act. That was enough for election officials to quickly back off, acknowledge their mistake and send notices to voters that the precinct at Our Lady of the Assumption church would be open on Election Day.

Now that the conservative majority on the U.S. Supreme Court has gutted the Voting Rights Act, I have to wonder: What would happen today?

Under Section 5 of the 1965 law, officials in all or parts of 16 states - including Monterey County - had to get federal approval in advance to make any election changes. That alone deterred all sorts of mischief. Without Section 5 in force after the high court's decision last month, voting rights advocates say it will be much more difficult to stop discrimination against voters, especially on the local level.

"Voter disenfranchisement is not only a thing of the past," Alejo, now a state assemblyman, told me. "It happens today."

Attention has rightly focused on highly controversial statewide voter identification laws that had been rejected but have been resurrected by Republicans in Southern states since the ruling. Yet, less-noticed local changes in cities and counties across the country could make a huge and more immediate impact.

Going from district to at-large elections can destroy minority voting power. Elections can be decided by moving or closing polling places, or reducing voting hours; that would force targeted voters to wait in long lines or discourage them from casting ballots at all. Advocates warn it will be practically impossible to keep track of all the local changes.

"We're very concerned about things flying under the radar," says Erin Hustings, a senior policy analyst with the National Association of Latino Elected and Appointed Officials Educational Fund.

The group says it will try to keep an eye on the parts of California where, until the high court ruling, Section 5 was still being enforced - Kings and Monterey counties, and most of Yuba County.

Over the years, the U.S. Justice Department blocked several election changes in those counties. It rejected a redistricting plan for Monterey County supervisors; a revised one led in 1993 to a Latino being elected for the first time in more than a century. In 1992, a similar scenario played out in Merced County.

In 1993, a proposed annexation in Hanford in Kings County was blocked; the city agreed to use a district election system that resulted in two Latinos winning City Council seats. In 2002, the Chualar Union Elementary School District in Monterey County was stopped from going back to at-large elections from district elections, put in place by a Latino majority on the board in 1995.

Then there are places like Wheatland, which by proving it hadn't tried to discriminate against minority voters, successfully got out from under federal oversight.

Like the rest of Yuba County, Wheatland had been covered under Section 5 since 1968 because less than half the voting-age population was casting ballots in presidential elections. County officials have long said that was because service members stationed at Beale Air Force Base were counted, though they were registered to vote elsewhere.

Like some 190 cities, counties and states so far, Wheatland "bailed out" from the Section 5 list by proving it had not discriminated for at least 10 years. So did Merced County last August. Yuba County, as a whole, has an application pending with the Justice Department, though it's moot for now with the high court decision.

Voting rights advocates say the "bail out" process was a fair and common sense way to escape the extra federal scrutiny under the Voting Rights Act - by showing a record of consistent compliance.

Wheatland, where about 18 percent of the 3,500 residents are Latino, pointed out that a Latino was elected to the City Council in 2004 and that voter turnout had increased to 72 percent in 2012. The Yuba County Elections Office, which runs the city's elections, has conducted voter registration drives at Latino fairs, provides all voter materials in Spanish and has Spanish-speaking poll workers.

Once Wheatland filed its application in January, the Justice Department investigated and agreed. The move became official in April, when a federal court signed off. It should be easier and less expensive for the city to run its elections without having to get federal permission first.

Mayor Rick West, who has lived in Wheatland for 12 years and served on the council for five, says he hasn't run into any racial issues and says there are no major election revisions in the works. Given Wheatland's track record, the rights of Hispanic voters appear safe.

But what about all those other towns in California and across the nation where politicians might try to take power away from minority voters?

With Section 5 not being enforced, officials no longer have to report proposed election changes to the feds. That was the best way to monitor any possible problems, especially in places where the media may not be as vigilant. The very day before the June 25 Supreme Court ruling, the Justice Department listed 86 submissions for election revisions in its weekly report. They included a polling place change in Kings County and a redistricting plan for the North Monterey County Unified School District.

Also, the court's decision shifted the burden of proof to voters and advocacy groups to show that an election change is discriminatory. That is a costly and time-consuming process that local advocates may not want, or be equipped, to undertake. With prior review and approval no longer needed, voters could be discriminated against before a challenge is heard.

"Once an election has happened, you can't dial back the results," says Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund.

That's why it's so essential that Congress acts quickly to restore enforcement of the Voting Rights Act.

Despite the bitter partisanship on Capitol Hill, advocates say they're hopeful that a bill will get through. I'm not as optimistic - and even more doubtful after dueling committee hearings last week. Wednesday in the Democratic-controlled Senate, voting rights advocates implored lawmakers to act, but Thursday in the Republican House, witnesses declared there is no need.

It took so much blood, sweat and tears to win these protections for voters. It would be a shame if they were taken away so cavalierly by five unelected justices.

Follow Foon Rhee on Twitter @foonrhee.

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