Lynch vetoes unconstitutional law

We give Governor John Lynch full marks for vetoing a law that would have greatly expanded the ability of judges to serve on the bench past the Constutional age limit of 70. Tom Fahey reports on the Governor's veto in the Union Leader.

Critics said the bill, HB 655, would violate the Constitution and erode the authority of the Executive Council.

Lynch said the bill takes too far a past Supreme Court decision that the Constitution allows judges to return to duty on a limited and temporary basis.

"This bill would substantially expand the circumstances and potential time frames during which judges over the age of 70 could serve on the bench," Lynch wrote in his veto message.

"Any further expansion of the role of judicial officers over the age of 70 should be drawn in a very narrow way, or addressed through an amendment to our Constitution." (more)

The language of the New Hampshire Constitution is crystal clear:

[Art.] 78. [Judges and Sheriffs, When Disqualified by Age.] No person shall hold the office of judge of any court, or judge of probate, or sheriff of any county, after he has attained the age of seventy years.

Josiah Bartlett Center President Charlie Arlinghaus praises Lynch for his decision to veto this ill-conceived bill:

Governor Lynch's sensible veto strikes a blow for the notion that the clear language of the constitution ought not be ignored.

The State Supreme Court has held that judges can return to the bench for temporary or limited duty, such as to fill in for a recused Supreme Court justice. That opinion was quite a stretch. The age limit itself may be a bad idea. Mandatory retirement ages are questionable on policy and legal grounds, but that doesn't mean the Legislature should ignore the clear language of the New Hampshire Constitution. If they disagree with the age limit, they should pass a Constitution amendment removing Article 78, and give the voters the chance to approve it.

Court may finally set N.H. voters free

By GRANT BOSSE For the Monitor

When Barack Obama and Hillary Clinton joined forces in Unity, N.H., last summer, no one mentioned that they had chosen one of the last bastions of the segregated South for their campaign rally. But in the eyes of the federal Justice Department, Unity and nine other New Hampshire towns have been on a watch list for discriminating against minority voters for the past 40 years. This week, a little-noticed Supreme Court ruling may finally force federal bureaucrats to acknowledge reality and let New Hampshire amend its election laws without federal oversight.

In the midst of the civil rights movement, Congress passed landmark legislation protecting the rights of all Americans to vote regardless of race. The federal government outlawed discriminatory state practices like poll taxes, literacy tests and grandfather clauses designed to discourage blacks from ever making it to the voting booth. The 1965 Voting Rights Act included an important provision to prevent segregationist lawmakers from inventing new ways to suppress black turnout. Under Section 5, states that had practiced discrimination, or with suspiciously low voter registration figures, would have to submit any changes to their election laws to federal authorities before they could enforce those changes.

It's been 40 years

So how did 10 New Hampshire towns get on this infamous list of suspected racists? Math. Small New Hampshire towns with low registrations in 1968 got put on the list and haven't been able to get off. In 2004, Attorney General Peter Heed asked federal authorities to take New Hampshire off its list using the "bailout" provision of Section 5. After all, Bull Connor never stood in a schoolhouse door in Rindge. No president ever called out the National Guard to integrate Hawthorne College in Antrim. The memo even provided strong evidence that several towns should never have tripped the pre-clearance trigger.

But the Justice Department couldn't see that these towns never should have been targeted in the first place.

Since 1982, only 17 districts over the 12,000 covered by Section 5 of the Voting Rights Act have successfully "bailed out" of the pre-clearance provision in the law. This week, the Supreme Court took the side of Texas municipal board in Northwest Utility District v Holder. The Court found that federal bureaucrats had been standing in the way of the district's right to "bail out" of federal election oversight. According to Assistant Attorney General James Kennedy, this ruling may finally allow New Hampshire's 10 covered towns to get the Justice Department off their backs.

This case shows that once given power over local decisions, federal bureaucrats don't want to give it up, even if the reason for that oversight has passed into history. This isn't a partisan complaint. The bureaucrats were just as likely to hold onto power during the Nixon and Reagan administrations as under Carter and Clinton. It demonstrates that when Washington steps into a state's decisions, even for the best of reasons, it is unlikely to ever step out again.

Won't notice a thing

The Northwest decision won't change your voting experience at all. The Valley News reported this week that the town clerk in Unity never knew that the town was under the thumb of federal oversight, and the Justice Department has never taken much interest in our local voting procedures. We've been ignoring the Voting Rights Act for 40 years, and both voters and the federal government have been okay with that.

The Northwest decision doesn't negate the importance of the Voting Rights Act, nor does it say that discrimination wasn't or still isn't a problem in America. It simply forces federal authorities to acknowledge reality, and allow states, counties and towns to make their own decisions. It also shows how far we've come in the past 40 years.

(Grant Bosse is lead investigator for the Josiah Bartlett Center for Public Policy, JBartlett.org.)

Supreme Court Report

Here is a downloadable copy of yesterday's report on the Supreme Court's Voting Rights Act decision, and its impact on New Hampshire towns:

Supreme Court Decision- NH 06-23-09

Supreme Court Decision May “Bail Out” New Hampshire Towns

By Grant Bosse

Yesterday’s Supreme Court decision carving out a narrow exemption to the Voting Rights Act may allow New Hampshire to change its election laws without federal oversight for the first time in over 40 years. Assistant Attorney General Jim Kennedy says he needs to study the ruling carefully, but it appears to apply to ten towns in the Granite State. New Hampshire authorities have been trying to remove ten towns from the Department of Justice’s jurisdiction for the past five years.

In The Northwest Utility District Number One v. Holder, the high court ruled 8-1 that a utility district in Texas could “bail out” of requirements to clear any changes to its elections with the Justice Department, despite the State of Texas being one of nine states listed as a “Covered Jurisdiction” under Section 5 of the federal Voting Rights Act. Parts of seven other states, including ten towns in New Hampshire, are also covered by the Act.

“I’ve just had opportunity to review the decision, however, I haven’t given it a full read as of this time. It appears that all political subdivisions, including those not listed under 14(c)(2) are entitled to bail out,” Kennedy said. “This seems to indicate that all the towns and unincorporated places covered in New Hampshire would be entitled to bail out.”

Under the 1965 Voting Rights Act, Congress required the Justice Department to sign off any changes to election laws in Covered Jurisdictions in order to prevent pro-segregation legislatures from imposing new hurdles on black voters. The Act abolished Jim Crow laws such as literacy tests and poll taxes. Congress specifically listed several states that had a literacy test in place, but also automatically covered any district where less than 50% of the voting age population were registered or voted in the November 1964 General Election. Low voter registration figures in ten small New Hampshire towns triggered the VRA, and any changes to local elections have been subject to federal oversight since November 1, 1968.

Those towns are Antrim, Benton, Boscawen, Millsfield, Newington, Pinkham’s Grant, Rindge, Stewartstown, Stratford, and Unity. Anything from moving a polling place to redrawing legislative districts is supposed to be submitted to the U.S. Attorney General or the federal district court in Washington D.C. for approval before those changes can be enforced.

In 2004, then Attorney General Peter Heed asked the Justice Department to let New Hampshire’s covered towns bail out of Section 5, arguing that the preclearance requirements made it difficult for the state to implement the Help America Vote Act of 2002. According to Heed’s letter, his office prepared 140 preclearance requests covering changes to New Hampshire law. Current Attorney General Kelly Ayotte submitted 58 such requests in 2005 alone.

In the Texas case, an elected Utility District board argued that since it had never practiced the racial discrimination that the Voting Rights Act aimed to prevent, it should be allowed to “bail out” from federal oversight, and questioned the constitutionality of the provision. The Supreme Court found the Justice Department has been improperly blocking Covered Jurisdictions the “bail out” option, as only 17 of the more than 12,000 covered jurisdictions have successfully bailed out of the law since 1982. The Court declined to overturn the law in its entirety. Justice Clarence Thomas dissented, arguing that the violence and intimidation that led to the Act’s passage no longer remain.

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This story may be reprinted with attribution to the Josiah Bartlett Center for Public Policy

The Next Supreme Court Justice: Sonia Sotomayor

Unofficial word around DC is that President Obama is a lock to nominate Sonia Sotomayor to replace Justice David Souter on the U.S. Supreme Court.

Meanwhile, here's an interesting roundup on the vacancy from Reason.