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Expert Brief

After 'Shelby County’ Ruling, Are Voting Rights Endangered?

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.

Published: September 23, 2013

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 The court’s rationale was that this formula was outdated and, there­fore, an imper­miss­ible stand­ard by which to subject any juris­dic­tion to the preclear­ance require­ments of Section 5.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 Impacts

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.

Strategies

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.

Endnotes:

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.

6. Id.

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).