Crossposted in New York Law Journal
Earlier this year we previewed two election cases before the Supreme Court that had the potential of dramatically changing the field: a dispute originating from Arizona concerning Congress' ability to preempt state law pursuant to the Elections Clause of the Constitution,1 and a case out of Alabama challenging the constitutionality of the "preclearance" provision (Section 5) of the Voting Rights Act.2 In the Arizona case,3 the Supreme Court upheld Congress' power to enact the National Voter Registration Act, also known as the Motor Voter Law. No real change here.
On the other hand, in the Voting Rights Act case, Shelby County v. Holder,4 the court upheld the constitutionality of preclearance—the requirement that certain jurisdictions submit proposed election changes to either the U.S. Department of Justice or a three-judge federal court for a review for discrimination5—but invalidated Section 4(b) of the act,6 the provision sometimes called the "coverage formula" that identifies which jurisdictions are subject to Section 5's preclearance requirements. The court's rationale was that this formula was outdated and, therefore, an impermissible standard by which to subject any jurisdiction to the preclearance requirements of Section 5. In short, the Shelby County ruling gutted Section 5 of the Voting Rights Act unless and until Congress revises the formula of Section 4.
In that Section 5 served as an important deterrent to discriminatory election procedures, the Shelby County ruling is obviously having an impact. Until Shelby County, election changes in nine covered states7 and certain counties in five states8 were reviewed for discrimination before they could go into effect. Voters living there were thus protected from restrictive changes without having to engage in case-by-case litigation. Indeed, many jurisdictions would alter or abandon a proposed change after receiving inquiries from the Justice Department; from 1999 to 2005, no less than 153 requests for preclearance were withdrawn and 109 were modified in response to the Justice Department's concerns.9
In a post-Shelby County world, however, voting rights advocates can no longer rely upon the preclearance process to block discriminatory election practices. Since the ruling, for instance, there have already been at least six lawsuits in jurisdictions formerly covered by Section 5. These lawsuits, prompted by recent voting restrictions, could have been handled administratively by the Justice Department but now must be addressed through more expensive and less efficient litigation.
Other immediate impacts have occurred. Several lawsuits brought prior to the ruling that had sought to enjoin various election law changes from going into effect have either been dismissed or changed in form. Following the Shelby County decision, the Supreme Court issued an order vacating and remanding the decision of a three-judge panel of the D.C. District Court, which had stayed implementation of a Texas voter ID law;10 the district court thereafter dismissed the case.11 In an Alabama case, Barber v. Bice,12 plaintiffs who had been challenging certain governing procedures of the state's board of elections discontinued their Section 5 claim, and instead focused upon other constitutional and statutory claims (including Section 2 of the Voting Rights Act, which bars discrimination throughout the nation but does not require preclearance).13 And in a Baton Rouge, La., redistricting case, the U.S. District Judge eliminated plaintiffs' Section 5 claim and proceeded to try only their constitutional claims.14
The significance of outcomes such as these is that, without the protections of Section 5, voters must wait until they are aggrieved before judicial intervention can be sought; no longer can they rely upon the courts or the Department of Justice to forestall or enjoin adverse impacts before restrictive new policies are put into effect. Voters can, of course, seek remedies based upon constitutional and other statutory grounds—but generally only after the alleged damage is done.
Laws and Regulations
The most dramatic consequence of Shelby County is that new election laws and regulations are being proposed or implemented that probably would not have seen the light of day had the protections of Section 5 still been in effect. North Carolina, for example, recently enacted omnibus legislation15 that made voting more restrictive. That law cuts back the number of early voting days, imposes a strict voter photo identification requirement, eliminates same-day voter registration, expands opportunities to challenge voters at the polls, and repeals protections against big money overwhelming the voice of ordinary voters. Indeed, a high-ranking member of the legislature was quoted in the media as being in favor of enacting a full range of voting restrictions now that North Carolina no longer had to go through the preclearance process.16 When more states resume their legislative sessions, we will have a better idea of how many states formerly covered by Section 5 will pass legislation that would have had tough preclearance battles.
New state restrictions might, however, only be the tip of the iceberg. There is widespread concern among voting rights advocates that manifold changes at the local level will also be affected; and such new voting restrictions are not likely to command the attention of the media or be noticed by voters until it is too late to challenge the changes.
In response to more restrictive legislation, the Justice Department and voting rights advocates are dusting off Section 3 of the Voting Rights Act.17 This little known and rarely used provision, sometimes referred to as the "bail-in" provision,18 authorizes a court to impose a requirement that a jurisdiction not covered under Section 4's formula nonetheless go through the preclearance process.19 In fact, since 1975, the Section 3 provision has been used by courts to impose preclearance requirements upon only two states (Arkansas and New Mexico), six counties (including Los Angeles County), and one city (Chattanooga, Tennessee).20
But now that the Supreme Court has invalidated the formula in Section 4, and, with it, the Justice Department's ability to preclear election changes for erstwhile covered jurisdictions, Section 3 relief is being requested in cases in Alaska (brought by native American voters),21 North Carolina (by the League of Women Voters and other voting rights advocates)22 and Texas (by the Department of Justice).23 We shall be watching how these cases proceed.
Section 5 of the Voting Rights Act was among the most effective tools voters had to guard against discriminatory voting laws. It remains to be seen how effective alternative remedies are.
Jerry H. Goldfeder, special counsel at Stroock & Stroock & Lavan, teaches election law at Fordham Law School and University of Pennsylvania Law School. He Is the author of "Goldfeder's Modern Election Law" (New York Legal Publishing Corp. Updated 3rd Ed. 2013). Myrna Pérez is the deputy director of the Democracy Program at the Brennan Center for Justice at NYU School of Law.
1. U.S. CONST. Art. I, § 4, cl. 1.
2. The "preclearance" requirement is found in Section 5 of the Voting Rights Act. It mandates that the Department of Justice or a three-judge panel of the D.C. District Court certify that any change to election laws or regulations in covered jurisdictions was not motivated by discriminatory intent or did not have a discriminatory effect. 42 U.S.C. §1973c(a) (2012).
3. Arizona v. Inter Tribal Council, 570 U.S.—, 133 S. Ct. 2247 (2013).
4. Shelby County v. Holder, 570 U.S.—, 133 S. Ct. 2612 (2013).
5. Id. at 2631.
7. The nine states were: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia. Section 5 Covered Jurisdictions, U.S. DEPARTMENT OF JUSTICE, http://www.justice.gov/crt/about/vot/sec_5/covered.php (last visited Sept. 13, 2013).
8. The five states with at least one county covered are: California, Florida, New York, North Carolina, and South Dakota. Id. Michigan also has two townships that were covered under section 5. Id.
9. Myrna Pérez and Vishal Agraharkar, If Section 5 Falls: New Voting Implications, BRENNAN CENTER FOR JUSTICE, 4-5 (2013), http://www.brennancenter.org/sites/default/files/publications/Section_5_New_Voting_Implications.pdf.
10. Texas v. Holder, 133 S. Ct. 2886 (2013); Texas v. Holder, 888 F.Supp.2d 113 (D.D.C. 2012).
11. Order Granting Motion to Dismiss at 1, Texas v. Holder, No. 1:12-cv-00128 (D.D.C. Aug. 27, 2013), ECF No. 382.
12. Barber v. Bice, No. 2:1-cv-00296-RDP (N.D. Ala. Aug. 2, 2013).
13. Second Amended Complaint, Barber v. Bice, No. 2:1-cv-00296-RDP (N.D. Ala. Aug. 2, 2013) ECF No. 36.
14. Hall v. Louisiana, No. 3:12-cv-00657 (M.D. La. 2012).
15. ELECTIONS—VOTERS AND VOTING—IDENTITY AND IDENTIFICATION, 2013 North Carolina Laws S.L. 2013-381 (H.B. 589).
16. NC Voter ID Bill Moving Ahead with Supreme Court Ruling, WRAL (June 25, 2013), http://www.wral.com/nc-senator-voter-id-bill-moving-ahead-with-ruling/12591669/.
17. See, e.g., The Editorial Board, "A New Defense of Voting Rights," N.Y. TIMES, July 28, 2013, at SR10, available at http://www.nytimes.com/2013/07/28/opinion/sunday/a-new-defense-of-voting-rights.html; Adam Serwer, The Secret Weapon that Could Save the Voting Rights Act, MSNBC (July 8, 2013, 12:36 PM), http://tv.msnbc.com/2013/07/08/sec-3-the-secret-weapon-for-protecting-minority-voters/.
18. 42 U.S.C §1973a(c) (2012).
19. Abby Rapoport, Get to Know Section 3 of The Voting Rights Act, THE AM. PROSPECT (Aug. 19, 2013), http://prospect.org/article/get-know-section-3-voting-rights-act.
20. Travis Crum, Note, "The Voting Rights Act's Secret Weapon; Pocket Trigger Litigation and Dynamic Preclearance," 119 Yale L.J. 1992, 2010 (2010).
21. Press Release, Native Am. Rights Fund, Alaska Native Sue Over Voting Rights Violations in Dillingham and Wade Hampton Regions (July 19, 2013) (available at http://electionlawblog.org/wp-content/uploads/2872_001.pdf).
22. Complaint, League of Woman Voters of North Carolina v. North Carolina, No. 1:13-cv-00660 (M.D.N.C. Aug. 12, 2013), ECF No. 1.
23. Press Release, U.S. Dep. Of Justice, Justice Department to File New Lawsuit Against State of Texas Over Voter I.D. Law (Aug. 22, 2013) (available at http://www.justice.gov/opa/pr/2013/August/13-ag-952.html).