Tuesday, June 25, 2013

Court Strikes Voting Rights Act Preclearance Coverage Formula

The Supreme Court today in Shelby County v. Holder ruled that Section 4 of the Voting Rights Act is unconstitutional.  Section 4 provides the coverage formula for Section 5, the preclearance provision.  The ruling does not stirke preclearance (in Section 5); it only strikes the coverage formula (in Section 4).  Moreover, the ruling says that the coverage formula was rational in 1966, just not today.  The case leaves in place Section 2, the ban on racial discrimination in voting.

Chief Justice Roberts wrote the majority opinion, joined by Justices Scalia, Kennedy, Thomas, and Alito; Justice Ginsburg wrote the dissent, joined by Justices Breyer, Sotomayor, and Kagan.

The Court said that Congress can re-write Section 4.  If Congress cannot do that, though, or if it can only do it in a way that this Court would strike, Section 5 preclearance will have no practical effect (even if it remains on the books).  That is: with no valid coverage formula for preclearance, preclearance doesn't happen.

If so, the ruling effectively strikes the preclearance requirement.  And if so, the VRA remedy for racial discrimination in voting is Section 2--the ban on racial discrimination in voting, enforced by case-by-case litigation against offending jurisdictions.  (Preclearance, on the other hand, required historically offending jurisdictions to justify in advance any changes to their voting laws.)  The failure of case-by-case litigation to keep up with so-called "second generation" voting discrimination is one key reason why Congress reauthorized Sections 4 and 5.

So, the long-and-short of it is this: If Congress can't re-write the coverage formula in Section 4 (which seems likely, given the politics in Congress), then Section 5 preclearance is of no effect.  If so, the VRA has lost a significant, singular tool in fighting race discrimination in voting.  We will continue to see case-by-case litigation against offending jurisdictions under Section 2, but if history is any guide, that litigation will never catch up with the many and clever ways that jurisdictions use to discriminate in voting.

This is a big loss for voting rights, even as it frees up covered jurisdictions from a burdensome preclearance requirement.

SDS

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