The strong case for keeping Section 5
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.
There are deep ironies in the current case against Section 5 of the Voting Rights Act. Before a 5-4 Republican majority of the Supreme Court opens the door to stronger voter suppression laws by overturning it in Shelby County v. Holder, the justices ‑ and the informed public ‑ should consider how effective Section 5 has been. Highly unusual political conditions made the act’s passage and renewals possible, and there would be almost insuperable difficulty in replacing it now that those conditions have changed.
Since 2009, I have been compiling a comprehensive list of voting rights incidents. (I have also served as an expert witness in such voting rights cases as those challenging the 2011 Texas redistricting laws.) The list now has 4,141 incidents: legal cases brought under Section 2 of the Voting Rights Act; legal cases brought under Section 5 of the act; objections by the Justice Department under Section 5 and “more information requests” issued by the department as part of the Section 5 process, if they resulted in pro-minority changes in election laws; and 14th Amendment cases.
Unpublished, as well as published, cases are included in the statistics below only if they resulted in changes in the election laws that helped minorities. Some are recorded in printed opinions, but many resulted in informal or court-approved settlements. In other instances, merely filing a lawsuit led to the changes in election laws that minority plaintiffs sought. This is a far larger number of incidents than in any database referred to in the Shelby County briefs.
What do these numbers reveal about the central issue that the Supreme Court asked the parties in Shelby County to address: the adequacy of the Section 5 coverage scheme. Section 5 mandates that certain states, counties or townships are barred from changing election laws without the approval of the Justice Department or the District Court of the District of Columbia.
First, 90 percent of the 4,141 incidents and 93.4 percent of the 3,775 “successful” incidents – those that resulted in changes to election law that advanced minorities’ voting rights – took place in the jurisdictions covered by Section 5. This may not be surprising, since 2,368 of the incidents were Section 5 objections or enforcement actions, or “more information” requests. These, by definition, can take place only in covered jurisdictions.
More instructive is the portion of the 1,256 successful Section 2 cases that arose in jurisdictions subject to oversight: 83.3 percent. Section 2 cases can be filed anywhere in the country. The number of successful Section 2 cases is far larger than that in the much-cited database compiled by Ellen Katz, a law professor at of the University of Michigan (which is subsumed in my list), and the proportion from covered jurisdictions is considerably higher than Katz found in published cases. This is because I included many unpublished cases that resulted in settlements, either in-court or out-of-court.
In other words, five-sixths or more of the cases of proven election discrimination from 1957 through 2013 have taken place in jurisdictions subject to Section 5 oversight ‑ which would mean very skillful targeting for any government program.
Many of the discriminating counties harbor repeat offenders. For example, since 1975, violations of the Voting Rights Act have been found in various Shelby County government entities 20 times. So the test case selected by opponents of the Voting Rights Act to demonstrate that the coverage scheme is outdated and that discrimination is a thing of the past is, in fact, the poster child for Section 5’s effectiveness and the continued need for the VRA.
Current legal arguments against the Voting Rights Act have many such ironic contradictions. On the one hand, the heightened scrutiny required under City of Boerne v. Flores demands that the coverage scheme be precisely “congruent” with the problem of discrimination. On the other hand, leaving some states uncovered by Section 5 is said to violate an implicit guarantee of equality among the states –a guarantee that is apparently thought superior to the Constitution’s explicit guarantee of the equal protection of individual people.
Similarly, the existence of discrimination outside the covered areas is used as an argument for eliminating protections against the far more prevalent discrimination within the covered areas.
Perhaps the most profound irony is that the Supreme Court’s decisions increase or decrease the number of discriminatory incidents, as indexed by successful lawsuits or objections. Recorded incidents are not pure measures of discrimination rather they reflect what counts as discrimination according to the rules set by Congress and the courts.
Favorable legal rulings encourage lawyers to file cases and activists to push the Justice Department to object to changes, while unfavorable rulings tie the hands of the department and discourage lawsuits. Trends in the numbers of events are then used to justify Supreme Court decisions expanding, cutting back or, potentially, overturning the VRA.
Thus, as the graph below shows, there were few Section 5 actions until the 1969 Allen v. Board of Elections case, which applied the Voting Rights Act to changes in election structures, such as shifting from district to at-large elections. Objections then skyrocketed until the 1976 decision in Beer v. U.S., in which the court ruled that only changes that made minorities worse off, not all changes that discriminated against them, violated Section 5. Objections then plummeted.
Key for Graph: The entries in the graph include 1144 objections to election law changes by the Justice Department; 1021 Justice Department requests for more information that resulted in withdrawals or alterations in submitted election law changes, and 158 successful lawsuits to enforce Section 5. A list of the jurisdictions covered by Section 5 is here.
The 1982 amendments to the law made proving Section 5 violations easier, and in the redistricting following the 1990 Census, objections rose markedly. But a series of subsequent cases, from Shaw v. Reno in 1993 through Bossier II in 2000, once more made it more difficult to object to discrimination.
Now the lessening of objections before the 2006 amendments is taken to indicate that the act is no longer needed.
Looking back, we can see that special political circumstances forced Congress to pass the Voting Rights Act and then renew it four times. The huge Democratic majorities in Congress in 1965 and the Republican Party’s traditional commitment to civil rights allowed northern Democrats and Republicans to respond to the pressure from the Civil Rights Movement and pass the act. Then re-enfranchisement of most African-Americans in the South solidified the Democratic identification with the act and kept Republicans from converting the majority of Southern congressional districts until 1994.
By 2006, the Voting Rights Act seemed sacrosanct, and Republicans feared that attacking it head-on would alienate Latinos and moderate whites ‑ especially since risk-averse defenders kept amendments to an absolute minimum.
But the dramatic 2010 shift to the right in the erstwhile party of Lincoln, combined with a growing Latino demographic and partisan Democratic wave, has revolutionized the political calculus on election laws. A judicial reversal of Section 5 in this context would invite Republicans to gerrymander away minority legislative and congressional districts in the South, claiming partisan motives for such actions. It could also mean more stringent voter identification, registration and felon disfranchisement laws. Together, the laws in this second disfranchisement might well completely solidify the South in the Republican camp for the foreseeable future.
In these new political circumstances, it is folly to imagine that improvements on a struck-down Section 5 or some new scheme that would stop racial discrimination nationally or outlaw unfair election practices generally could pass the Congress. Under other conditions, it might be desirable to shift the basis of coverage from a history of discrimination to a demography of discrimination – on the grounds that the rise or presence of any minority group anywhere to a large enough percentage to constitute a threat to a majority group in power would be likely to trigger offsetting changes in election laws. But now it is unlikely that such a change could pass.
The impossible is the enemy of the adequate. Section 5 has served the country well, and ivory tower talk of schemes to replace it is a self-delusive fantasy.
ILLUSTRATION: MATT MAHURIN
PHOTO (Insert): The U.S. Supreme Court building seen in Washington May 20, 2009. REUTERS/Molly Riley