Last week, in Shelby County, Alabama, v. Holder, the Supreme Court issued an opinion striking down Section 4 of the Voting Rights Act. On the one hand, this decision is a major setback for the use of the Voting Rights Act to prevent what Chief Justice Roberts described in his opinion for the Court as subtle forms of discrimination, but it is not, by itself, a fatal blow.
The Voting Rights Act was passed in 1965 and is codified in Title 42 of the United States Code starting in Section 1973. There are two major sections in the Voting Rights Act that protect against discriminatory practices. The first of these two sections (commonly called Section 2) bars procedures and practices if plaintiffs can show that, as a result, of those practices the election process is not equally open to participation by all races and ethnic groups. A process is not equally open if members of one racial group have less opportunity "to participate in the political process and to elect representatives of their choice." Most cases under this section involve issues of "vote dilution" -- primarily using district lines to reduce the number of districts in which specific groups have "influence" over who wins. Courts have generally interpreted Section 2 as requiring those challenging an election procedure to show a negative impact on the voting power of minorities. These cases are heard by three-judge panels in one of the federal court districts in the state.
The other major restriction is contained in what is commonly called Section 5. Under Section 5, a "covered" state must submit proposed changes to election procedures to preclearance. Preclearance requires getting the approval of the Department of Justice or a three-judge panel of the District Court for the District of Columbia for the change. A change can only be approved if the state demonstrates that the proposal does not diminish the ability of a specific racial group to select their preferred candidate (typically referred to as retrograde analysis.
Section 4 was a crucial provision because it established the baseline formula for which states and jurisdictions were subject to preclearance. Section 4 contains two main parts. The first part contained the initial formula from 1965, 1970, and 1975. The second part contained rules by which the states and jurisdictions that were covered by the first part could exempt themselves from preclearance.
The Supreme Court struck down the first part of Section 4, finding that the use of which states were bad actors in 1975 was not reasonably related to current problems (particularly as the majority of the covered states now were not distinguishable from the other states in terms of the factors used in the coverage formula) and thus this disparate treatment of states could not be justified. While the majority mentioned the second part of Section 4, it did not consider whether that part of Section 4 (the failure of the covered states to prove that they had sufficiently reformed) justified keeping Section 4 intact whereas the dissent emphasized the importance of this second part.
So where do things go from here?