If the court strikes Section 5 of Voting Rights Act
This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.
We celebrated Martin Luther King Jr.’s birthday last week in the shadow of a fight over the constitutionality of a key provision of the Voting Rights Act. The Supreme Court will soon hear arguments in Shelby County v. Holder, raising the question whether Section 5 of the act, which requires that states and localities with a history of racial discrimination in voting get permission from the federal government before making any changes in election procedures, is now unconstitutional. The smart money is on the court striking down the law as an improper exercise of congressional power, although Justice Anthony Kennedy or another justice could still surprise.
If the court strikes Section 5, the big question is: What comes next? Reuters has invited a number of leading academics, who focus on voting rights and election law, to contribute to a forum on this question. In this introductory piece, I sketch out what may happen and what’s at stake.
One possibility is that nothing happens after Section 5 falls and minority voters in covered jurisdictions lose their important bargaining chip. Then, expect to see more brazen partisan gerrymanders, cutbacks in early voting and imposition of tougher voting and registration rules in the formerly covered jurisdictions.
The fight over these rules will be mostly political, not legal. I do not expect many successful constitutional cases or cases under Section 2 of the Voting Rights Act – a different provision which applies nationwide but is harder for plaintiffs to win.
Another possibility, and one which seems fairly likely, is that negative public reaction to the Supreme Court striking down a crown jewel of the civil rights movement creates a political opening for Congress to enact a new piece of voting rights legislation. The GOP may also be eager to support some kind of legislation to blunt the likely fallout from an adverse action from the Roberts Court.
The choice of post-Shelby County legislation threatens to split the civil rights and election reform community over whether any New Voting Rights Act will be race-based – focused on protecting minority voters in particular – or whether the law will be focused on election reform more broadly, though still in ways that could significantly help minority voters.
A race-based reform could try to impose something like Section 5 nationally, though without the requirement that jurisdictions get permission before changing their voting rules. For example, a New Voting Rights Act could give groups challenging a new voting practice anywhere in the country the opportunity to show that the law makes minority voters worse off. It is unclear, at this point, whether such a race-conscious law would survive Supreme Court review after the Shelby County case and the Fisher affirmative action case.
An election reform-based proposal, in contrast, could set national standards for lines at the polls, ensure access to voting, rein in gerrymandering, create a uniform federal ballot design or address other issues, such as modernizing voter registration. If legislation comes, a new national standard seems inevitable. Even if we need a special law for election disaster zones like Florida and Ohio, it is hard to see the political path for Congress to pick a new set of jurisdictions to be subject to special federal control.
Even non-race based reforms could raise potential constitutional problems. This term the Supreme Court is hearing another case, out of Arizona, which raises questions over how much power Congress has over states to set the rules being used in federal elections. In the Arizona case, the specific question is whether Arizona officials must accept a federal voter registration form that does not include citizenship information required by Arizona law.
Since this Reuters forum deals with questions of what new legislation might look like, and what might be constitutionally permissible, it is worth recalling how Section 5 came into being. As I recently explained in Slate, “[t]he states and localities covered by Section 5 must prove that any change in voting rules it proposes will not have the effect, and was not enacted with the purpose, of making minority voters worse off. The original point of this law, when it first passed in 1965, was to stop an old cat-and-mouse game in which the federal government sued racist Southern states to stop discriminatory voting practices – and after the feds won, the states would just enact a slightly different discriminatory law in its place. Today, the law prevents these jurisdictions from slipping back into that pattern.”
For example, a three-judge court recently sided with the Department of Justice over Texas, blocking the state’s new voter ID law (probably the toughest in the nation) because Texas could not prove that its law would not disproportionately affect minority voters, who tend to be poor. A separate three-judge court also recently blocked Texas’ new redistricting, finding evidence not only of its discriminatory effect on minority voters, but also racially discriminatory purpose.
Minority voters in covered jurisdictions have had the protections of Section 5 since 1965, but minority voters in other states do not. When Pennsylvania and Wisconsin, for example, recently passed tough voter identification laws, those laws did not have to go through federal preclearance. Opponents of those laws blocked them for use in 2012 using state law. But it is far from clear that the laws will be blocked in 2014 or 2016.
This dual treatment reveals the heart of the constitutional argument against Section 5. Back in 1966, South Carolina complained to the Supreme Court about the pre-clearance provision, asserting it was an affront to state sovereignty. There is indeed no other law like Section 5 – requiring a collection of states to get their laws pre-approved by the federal government before the laws could go into effect.
In South Carolina v. Katzenbach (1966), the Supreme Court brushed aside the federalism argument. It agreed that the pre-clearance provision was “strong medicine.” But it ruled that the law was justified because it was geographically limited to those states with a recent history of racial discrimination in voting and because it was time limited – the original Section 5 was to last only five years.
In a 2009 case, the Supreme Court strongly hinted that Section 5 could exceed Congress’s power because Congress did not provide evidence the law remains targeted at those jurisdictions currently presenting a danger of intentionally discriminating on the basis of race.
Chief Justice John Roberts, who has long opposed aspects of the Voting Rights Act, could well be ready to strike down Section 5. The court will probably do so by saying not that Section 5 is unconstitutional, but that the coverage formula used to pick covered jurisdictions is unconstitutional and needs to be updated.
It is no easy task to construct what might take the place of the Voting Rights Act’s Section 5 should the court whisk it away, showing disdain for a congressional judgment that the law is still needed. Perhaps the court will blink again and not strike down the act. But people should start thinking about the question now, so that when the court ends its blockbuster term, legislative proposals to replace Section 5 are ready to go if necessary.
Watch this space over the next few weeks for the beginning of the discussion.
PHOTO (Top): The U.S. Supreme Court building seen in Washington May 20, 2009. REUTERS/Molly Riley
ILLUSTRATION: MATT MAHURIN
PHOTO (Bottom Insert): Chief Justice John Roberts listens to arguments from George Washington University law students during a moot court competition in Washington, February 9, 2006. REUTERS/Jim Young