Watch out in the covered jurisdictions
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.
If the Supreme Court strikes down Section 5, Congress is unlikely to pass any sort of “New Voting Rights Act.” So when thinking about what happens next, we need to focus on what voting changes the jurisdictions now subject to oversight might enact that would violate Section 5’s principal aim of preserving minority voting strength. In doing so, there are two dichotomies to consider: one between state legislatures and local governments, the other between voting changes related to ballot access, such as voter registration, and those related to vote dilution, such as redistricting.
When it comes to state governments and vote dilution, states seem unlikely to dismantle districts that give minority voters clout — the “safe” districts that often have a majority of minority population. One reason it’s unlikely is that most of the states under Section 5 oversight are controlled by Republicans, and Republicans often perceive safe minority districts as politically favorable because they pack reliable Democratic voters together. That’s not to say all states will preserve all such districts—there will undoubtedly be outliers. But massive retrogression of minority voting strength on the statewide level seems unlikely.
In contrast, on the local level, there could be widespread retrogression. This could come from redistricting plans that eliminate “safe” districts, switches to at-large elections or annexations of white population by cities and towns that would reduce minority voters’ influence.
The key reason these changes are likely is that if you look at the Justice Department’s pre-clearance enforcement over the past 30 years, what stands out is that a disproportionate number of pre-clearance denials involved vote dilution on the local level. If local jurisdictions are most likely to violate Section 5 now, they are far more likely to be emboldened when it’s killed.
In terms of ballot access, the states subject to Section 5 seem most likely to adopt provisions that make it harder for voters, especially minority voters, to register and cast a ballot. If the Supreme Court strikes down Section 5, every covered jurisdiction under Republican control may well pass a voter ID law that could be nearly as restrictive as Texas’ proposed strict ID law. Moreover, these legislatures might then take things further ‑ perhaps requiring additional identifying documents as a condition for voter registration.
When it comes to local governments and ballot access issues, though, there are unlikely to be widespread changes that disproportionately harm minority voters. In the past three decades the Justice Department has reviewed more than 100,000 of these types of changes with relatively few denials of pre-clearance.
Of course, it’s impossible to know how the jurisdictions subject to Section 5 will use, or abuse, their newfound freedom. But if the Supreme Court strikes down Section 5, we’ll get to find out.