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Voting Rights -- Possible Paths Forward

by: tmess2

Fri Jul 05, 2013 at 07:30:00 AM EDT

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?

tmess2 :: Voting Rights -- Possible Paths Forward

First, Section 2 remains intact.  Section 2 is not as good a protection as Section 5.  Under Section 5, the procedure does not take effect until the State receives preclearance and the State had the burden of proof.  Under Section 2, the procedure goes into effect unless the voters can convince the court to stay the new law, and the voters ultimately carry the burden of proof.

Second, Section 3 may now become a significant provision.  Section 3 allows a district court to require that a jurisdiction proven to have engaged in constitutional violations preclear changes to election procedure with that court.  Currently, the district court in Texas reviewing the 2011 district lines has requested both sides to brief whether it should invoke Section 3.  Because Section 3 has not been significant in the past, it is unclear what the Supreme Court would require before a district court could invoke Section 3 and how long a period of preclearance would be justified.

Third, Congress might be able to revise the preclearance formula.  Both Section 3 and the record compiled before the 2006 reauthorization of Section 4 gives some clues as to how a formula focused on recent findings of improper procedures under Section 2 and Section 5 might look.  Most of the states subject to preclearance have lousy records in voting rights cases (especially Texas and Alabama, the two states most gloating over the Shelby County decision).  Of course, getting anything through this Congress is difficult and the number of moderate Republicans in Congress interested in civil rights have substantially decreased.

For now, expect to see a major Section 3 case sometime in the next 2-3 years.  How the Supreme Court determines that case will indicate how big a hole is created by the loss of Section 4.

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thanks (0.00 / 0)
interesting, as always, and a little bit encouraging

Court Cases (0.00 / 0)
It sucks that court cases are after the fact, but I'm wondering if it's possible to get injunctions prior to implementation through the next election. It's what we did here in PA last year regarding the Voter ID heinous legislation. We made it through last November, and the primary this spring without the onerous requirements, and the full trial starts this month.  

Stays (0.00 / 0)

Stays are hard to get in federal court.  Don't know enough about the rules in Pennsylvania to know if the requirements are similar to the federal.

I know they did succeed in getting a stay for Arizona on the proof of citizenship requirement that was ultimately struck down (sort of) by the Supreme Court.

The two hard parts of the stay requirement is showing a substantial likelihood of success and the balancing of the public interest and the interests of the parties. 

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