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As the Supreme Court prepares to release its decision in Shelby County v. Holder, this report analyzes new implic­a­tions — that have so far gone largely unnoted — if the Court takes the extraordin­ary step of strik­ing down Section 5 of the Voting Rights Act. This key provi­sion has been crucial to chal­len­ging restrict­ive voting laws proposed by states in recent years. Without the protec­tions of Section 5, states might seek to rein­state or push a wave of discrim­in­at­ory voting meas­ures that were previ­ously blocked or deterred by the law. This would seri­ously threaten the rights of minor­ity voters across the coun­try to cast a ballot and gener­ate addi­tional confu­sion and litig­a­tion over voting rules.

Exec­ut­ive Summary

For nearly five decades, Section 5 of the Voting Rights Act of 1965 (“VRA”) has been one of the nation’s most effect­ive tools to erad­ic­ate racial discrim­in­a­tion in voting. Section 5 prohib­its certain states and juris­dic­tions with histor­ies of voting discrim­in­a­tion from enfor­cing changes to their elec­tion proced­ures until the changes have been reviewed by the U.S. Depart­ment of Justice (“DOJ”) or a federal court through a process called “preclear­ance.” This crit­ical tool stops discrim­in­at­ory elec­tion changes before they can harm voters by requir­ing juris­dic­tions covered by Section 5 to demon­strate that their proposed voting changes do not have a racially discrim­in­at­ory intent or effect.

Section 5 has been chal­lenged as uncon­sti­tu­tional in Shelby County v. Holder, now pending before the U.S. Supreme Court. The Court upheld Section 5 in four previ­ous cases, and we believe it ought to do so again. The U.S. Consti­tu­tion specific­ally gives Congress the author­ity to adopt legis­la­tion to combat racial discrim­in­a­tion in voting. Lawmakers considered a vast amount of evid­ence show­ing ongo­ing racial voting discrim­in­a­tion in the Section 5 covered states before voting nearly unan­im­ously in 2006 to continue the provi­sion through 2031.

The decision in the Shelby County case could have signi­fic­ant consequences. Should the Court elim­in­ate or weaken Section 5, minor­ity voting rights could be threatened on a number of fronts by juris­dic­tions attempt­ing to:

  • re-enact discrim­in­at­ory voting changes that have been form­ally blocked by Section 5 (31 propos­als were blocked by DOJ alone since the VRA was reau­thor­ized in 2006);
  • adopt discrim­in­at­ory voting changes that previ­ously were deterred by Section 5 (for example, between 1999 and 2005, 153 changes were with­drawn when DOJ asked ques­tions about them);
  • imple­ment discrim­in­at­ory voting changes that have lain dormant while await­ing Section 5 review;
  • adopt new restrict­ive changes; or
  • imple­ment discrim­in­at­ory voting changes that have been blocked from going into effect, but tech­nic­ally still remain on the books.