Do We Still Need the Voting Rights Act?

Sometime early next year, the Supreme Court is expected to invalidate Section 5 of the Voting Rights Act, the most powerful and effective tool that the United States government has to combat discriminatory election practices. The expected decision, in a case called Shelby County v. Holder is not being met with shock or outrage by legal academics, but rather a dismayed shrug.

Section 5 is one of the most unique civil-rights laws because it does not apply to most of the country. Instead, with a handful of exceptions like Alaska, Arizona and part of New York City, it applies only to states in the South—to be specific: all of South Carolina, Georgia, Alabama, Mississippi, Louisiana, Texas, most of Virginia, part of North Carolina and a handful of counties of Florida. In these covered areas, every decision relating to elections is subject to approval, or preclearance, by the Justice Department in Washington, D.C. And every decision means every single decision.

If a state covered by the Voting Rights Act wants to redraw its congressional districts or pass a voter-ID law, it needs to seek approval from Washington first. If a county board of elections in a covered jurisdiction wants to move a polling place from the Baptist church to the Methodist church down the street, or if a school board wants to expand its membership, that needs to be cleared by the Justice Department, too. Although this seems excessive, the logic behind it is sound. Subtle changes can have a major impact, and the most innocuous adjustments can have malicious intent.

For example, the Baptist church may be in the heart of a majority African-American precinct and easy to walk to, while the Methodist one may be at the precinct’s border and only accessible by car. Or it may be as innocent as the Baptist church having a leaky roof and the Methodists being willing to serve as a sturdier polling place. Under the Voting Rights Act, the Justice Department has to parse out which is the real reason for the move, and the burden of proof is placed on the jurisdiction to prove that the change is nondiscriminatory.

A majority on the Supreme Court has long been uncomfortable with this setup, however. The formula that determines what jurisdictions are covered by the Voting Rights Act has not been changed by Congress since the 1970s, and this intrusion into state sovereignty was justified only by the “exceptional conditions” of a century of institutional racism and Jim Crow. Although one prominent liberal academic has mused that Chief Justice Roberts would have found the provision unconstitutional in 1966, let alone 2012, the court has already ducked ruling on the law’s constitutionality once.

In a 2009 case with the excruciatingly long name Northwest Austin Municipal Utility District No. 1 v. Holder (PDF) (known as “Namudno” for short), the court reinterpreted the law to avoid reaching the constitutional issue by letting a tiny Texas utility district evade its requirements. However, the court warned that Section 5 imposed such a heavy cost on states that a history of past discrimination alone did not justify it, stating that “the Act imposes current burdens and must be justified by current needs.” Next year, it will finally determine if those needs in fact still exist.

While many civil-rights advocates are disappointed that the provision is likely to be invalidated, there are silver linings. Section 5 has consistently been interpreted by the courts as preventing something called retrogression. This means that changes to the voting process cannot make the affected minority groups (which, depending on the jurisdiction, may also be Hispanics, Native Americans, or even French Canadians in parts of New Hampshire) worse off than they were before. In particular, it has been interpreted to mean that the number of majority-minority districts cannot be reduced. In recent redistricting cycles, it has been used to pack African Americans, who vote overwhelmingly Democratic, into majority-black districts. The result is that while the number of African-American legislators and congressmen in the South has gone up significantly, so have the number of Republicans.

Blacks gain seats but not power in increasingly Republican dominated statehouses. It is partisan gerrymandering under the guise of a civil-rights crusade. But statewide redistricting always receives heavy scrutiny and can be subject to litigation in covered states. Without Section 5, will anyone notice if moving a polling place in rural Alabama has a discriminatory effect?

It’s impossible to predict with certainty what the Supreme Court will do when it hears arguments early next year. As shown by his decision validating Obamacare, Chief Justice Roberts is very attuned to public opinion and declaring a provision of the Voting Rights Act unconstitutional wouldn’t be very popular. (The law was renewed in Congress by overwhelming majorities in 2007). But there’s every indication that, based on its precedents, the court will strike the law down. After an election in which an African-American president was reelected and the major concerns about voter discrimination were in Ohio and Pennsylvania, not the former Confederacy, it’s unlikely that Roberts and the other conservatives on the court will continue to find “exceptional conditions” in the South that require this special scrutiny. Then again, it wouldn’t be the first time the Roberts Court has surprised.