Tuesday, June 25, 2013

The Core Problem With Preclearance Coverage Under the Voting Rights Act

The five-Justice majority, led by Chief Justice Roberts, today struck the coverage formula for preclearance under the Voting Rights Act.  Our earlier posts are here and here; our oral argument review is here.

In short, Chief Justice Roberts wrote that the Section 4 coverage formula was out of date.  He took issue with Congress's "reverse engineering"--that is, figuring out which states should be covered, and working backwards to design a formula that covered them--when it reauthorized the VRA in 2006, because, he wrote, that formula was based on data compiled 40 years ago.  He wrote that the coverage formula was rational then; it is not now, 40 years later, with substantially changed circumstances.

Chief Justices Roberts acknowledged that Congress compiled voluminous data demonstrating racial discrimination, but he wrote that the coverage formula reauthorized in 2006 wasn't based on that data.  Instead, it was based on 40-year-old data, from the time Congress originally enacted the VRA.

Because the Court saw preclearance as such a dramatic action--shifting the usual burden on the plaintiff to show discrimination to a covered state or jurisdiction to show lack of discriminatory effect in a proposed change in their voting laws, and thus infringing on the "equal sovereignty of the states"--it held the coverage formula to a higher standard.  The Court said that the formula, based on 40-year-old data, was simply out of date.

Still, the Court said that Congress could rewrite the formula.  This seems a far-fetched possibility, given the politics and divisions in Congress.  If it doesn't happen, preclearance under Section 5 remains on the books, but it'll have no effect, because there will be no jurisdictions covered.

Without preclearance, the VRA loses its crown jewel.  Section 2 case-by-case litigation against offending jurisdictions remains in play, but, as Congress found, case-by-case litigation has a real hard time keeping up with the clever, under-the-radar ways that some states and jurisdictions use their voting laws to discriminate in the vote.

SDS

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