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Life After the Voting Rights Act

Supporters of the Voting Rights Act are hoping for the best and preparing for the worst as the days count down to the U.S. Supreme Court’s decision in Shelby County v. Holder. See the Brennan Center’s research on what to expect.

Published: June 19, 2013

Support­ers of the Voting Rights Act are hoping for the best and prepar­ing for the worst as the days count down to the U.S. Supreme Court’s decision in Shelby County v. Holder, the live chal­lenge to the “preclear­ance” require­ment in Section 5 of the federal stat­ute. If the “best” occurs, at least five of the justices will recog­nize that the vener­able law, while not perfectly tailored, is nonethe­less a viably consti­tu­tional expres­sion of Congress’s desire to reduce voting discrim­in­a­tion in juris­dic­tions with long histor­ies (and current iter­a­tions) of racist policies and prac­tices. And if the “worst” occurs, and many legal observ­ers are predict­ing it will, we will see five votes to strike down Section 5 or other­wise nullify its remedial effects.

All of which is why it is import­ant, as the clock ticks toward resol­u­tion of Shelby County, to contem­plate what the world might look like after the demise of Section 5. It is not a pretty sight. State lawmakers, restrained for the past 48 years from imple­ment­ing discrim­in­at­ory voting prac­tices, would be able to do so without first clear­ing their policies with federal offi­cials. The burden of estab­lish­ing voting discrim­in­a­tion would shift from state offi­cials to indi­vidual voters, who would have to engage in lengthy litig­a­tion after discrim­in­at­ory laws are imple­men­ted. There can be no doubt the end of Section 5 would result in the disen­fran­chise­ment of minor­ity voters. The only open ques­tion is how many would effect­ively lose their abil­ity to vote.          

Those are all general obser­va­tions. In a report out last week just in time for the Supreme Court’s final crush of decisions, the Bren­nan Center duti­fully offered some specif­ics and a great many details about the disad­vant­ages voters could exper­i­ence if state offi­cials were able to imple­ment discrim­in­at­ory prac­tices in a world without Section 5:

  1. Juris­dic­tions could try to revise discrim­in­at­ory changes blocked by Section 5. To give you a sense of the scope of this category, consider that 31 such proposed changes have been blocked by the Justice Depart­ment or the federal courts since the Voting Rights Act was last reau­thor­ized just eight years ago. In just the past six months, after the 2012 elec­tion, many  such chal­lenges have been rejec­ted.
  2. Juris­dic­tions could put in place broad discrim­in­at­ory prac­tices they were previ­ously “chilled” from imple­ment­ing by Section 5’s preclear­ance require­ment. In South Caro­lina v. Holder, a Section 5 chal­lenge that preceded the 2012 elec­tion, U.S. District Judge John D. Bates, an appointee of George W. Bush, high­lighted the deterrent effect of the stat­ute — how it preven­ted state lawmakers from moving forward with the most obvi­ously discrim­in­at­ory prac­tices, and how these offi­cials narrowed the scope of their proposed voting change to track the require­ments of the Section. That deterrent effect will be gone.
  3. Juris­dic­tions might imple­ment those discrim­in­at­ory prac­tices they tried but failed to get past the Justice Depart­ment under Section 5. The Bren­nan Center reports that 153 such voting meas­ures have been submit­ted and then with­drawn in recent years after federal offi­cials ques­tioned the discrim­in­at­ory nature of these proposed laws. Even if just half of these policies were to be recon­sidered and adop­ted in the absence of Section 5 they would signi­fic­antly change the voting rights land­scape in several South­ern states.
  4. Finally, the most obvi­ous impact — juris­dic­tions might try to adopt restrict­ive new voting meas­ures they neither contem­plated nor dared submit for preclear­ance under Section 5. For best effect, those lawmakers could do so on the eve of an elec­tion, forcing voting rights advoc­ates to scramble and prac­tic­ally daring the federal judi­ciary to enjoin the meas­ures. We would­n’t likely go back to the age, as John Lewis recoun­ted, where black voters would have to guess the number of bubbles in a bar of soap. But we would­n’t be too far off, either. Just last elec­tion cycle, in Texas, lawmakers sought to impose what amoun­ted to a poll tax on indi­gent — or carless — registered voters.

Rick Hasen, the notable voting rights special­ist, predicted last week that the Court’s conser­vat­ives would neuter Section 5 without killing it outright and the justices would then seek to blunt the public reac­tion to their decision by invit­ing Congress to “fix” the Section. It’s hard to see this Congress rush­ing to the rescue of the Voting Rights Act. Then again, our federal lawmakers did ratify the law’s renewal in 2006 by over­whelm­ing major­it­ies in both houses and it’s hard to argue that Congress today is mater­i­ally more conser­vat­ive than it was seven years ago. Here again, I suppose, it’s prob­ably a good idea to hope for the best and prepare for the worst.