On June 25, 2013, five justices of the U.S. Supreme Court tore a gaping hole in the Voting Rights Act. In Shelby County v. Holder, they held unconstitutional the formula for determining which states and localities had to get approval––known as preclearance––from Washington before making voting changes. The law had forced nine states and jurisdictions in six more to prove to the attorney general or a three-judge court in Washington, D.C., that any voting change had neither the purpose nor the effect of discriminating on the basis of race or language minority status. If they failed, the change could not go into effect. The law was widely touted as the nation’s most effective civil rights law. The Court’s decision freeing the previously covered states for the first time in 47 years to make election changes without prior approval spawned two fundamental questions: Would the remaining provisions of the law provide adequate protection for minority voters and should Congress enact new protections?
Writing for the majority, Chief Justice John G. Roberts Jr. said the formula contained in section 4 of the Act was out of date and did not reliably identify jurisdictions in which voters needed special federal protection. He gave barely a nod to the 15,000-page legislative record compiled by Congress to demonstrate the continuing accuracy of the coverage formula and the persistence of voting discrimination that made reauthorization of the preclearance requirement necessary in 2006.
In renewing the preclearance requirement by unanimous vote in the Senate and an overwhelming vote in the House of Representatives, Congress determined that lifting preclearance would be premature and would leave the work of the Voting Rights Act unfinished. The Court, however, substituted its judgment for that of Congress, noting that use of the original measures of suppressed registration and turnout rates would no longer justify coverage of states of the Deep South.
Roberts ignored Congress’s extensive documentation of evolving forms of discrimination in areas such as redistricting and the use of at-large elections and concluded that singling out the states and localities covered by the 2006 reauthorization ran afoul of the doctrine of the equal sovereignty of the states. Strikingly, in 1966, when the Court upheld the constitutionality of the newly enacted Voting Rights Act, it expressly rejected South Carolina’s contention that subjecting it to preclearance violated the equal sovereignty of the states, noting that the doctrine applied only to the terms of admission to the union. The Court displayed remarkable disdain for Congress and the constitutional text’s express empowerment of Congress to enforce the Fourteenth and Fifteenth Amendments.
The Aftermath in the States
The sudden demise of section 5 invited previously covered jurisdictions to test their wings. Within hours, Attorney General Greg Abbott of Texas announced that Texas would put its previously blocked voter ID law into effect, and the state adopted previously challenged redistricting plans.
The North Carolina legislature enacted and the governor signed the Voter Information Verification Act (VIVA), which contained a laundry list of new voter restrictions. A recent study by political scientists Michael C. Herron and Daniel A. Smith concluded, not surprisingly, that the law’s restrictions on early voting and registration during that period, its photo identification provision, and its elimination of the right of 17-year-olds to preregister to vote would disparately harm black voters. It also found that the law’s special identification dispensation for voters over 70 disproportionately benefits whites.
Alabama and Mississippi moved ahead with plans to implement voter ID laws that had yet to receive preclearance. Florida planned another purge of its voter rolls.
Much of the effectiveness of section 5 stemmed from its application to all voting changes, even those enacted by the smallest covered jurisdictions. Absent preclearance, many local changes will fly below the radar.
For example, Pasadena, Texas, has redrawn its city council district lines so that two of the eight seats can be filled at-large, thereby making it almost certain that whites will gain two seats at the expense of the Latino community. This scheme would have almost certainly failed to win preclearance. And Galveston, Texas, reduced the number of justices of the peace, eliminating a position held by an African American. A similar reduction had been denied preclearance just a year before.
Adequacy of the Remainder of the Voting Rights Act
Other provisions of the Act remain in effect. The attorney general and private parties can still bring suit pursuant to section 2 of the Act to challenge voting changes that “result” in discrimination. Section 2 applies nationwide, but its primary applications have been to redistrictings and methods of election that dilute the effectiveness of minority votes. It has not generally been used to challenge denial of access to the ballot. In the absence of preclearance, section 2 will become the principal vehicle for challenging the latest generation of voting changes, including restrictive voter ID laws, new registration requirements, voter purges, reductions in early voting, the distribution of voting resources, and the location of polling places. Litigation of these cases will present courts and litigants with novel issues of law.
Section 3 of the Act also continues to offer an alternative method to bail in jurisdictions to preclearance. Section 3 states that if a court finds that a jurisdiction has engaged in intentional discrimination in violation of the Fourteenth or Fifteenth Amendment, it may order as part of its relief that the jurisdiction submit future voting changes to the court or the attorney general for preclearance before they may go into effect. This section was used rarely when section 4 was in effect. Only two states—Arkansas and New Mexico—and six counties and one city were bailed in under section 3. The Department of Justice and private litigants have requested section 3 bail in for Texas and North Carolina in the challenges filed to their recently enacted laws.
Reliance on section 3 answers the Court’s concern that section 4’s coverage formula is stale by resting preclearance on a finding of a recent constitutional violation. It puts that determination in the hands of a court and allows the court to shape the scope and duration of the preclearance requirement to fit the violation. A court may limit preclearance to the type of violation proven in the case or extend it to related matters, and it can gauge the risk of recalcitrance to determine the length of preclearance coverage. The provision also allows the court to determine whether it or the attorney general will conduct preclearance reviews.
The section, however, is not a complete response. It requires a showing of intentional discrimination, which has always been a high hurdle in voting cases where intentions can be varied, complex, concealed, and difficult to prove in court. Indeed, Congress recognized the difficulty of proving intentional discrimination when it amended section 2 of the Act in 1982 to clarify that a showing of a discriminatory result was sufficient to violate the Act. Section 2’s results test has been the principal vehicle for challenging measures that dilute minority votes, yet it is not recognized in section 3 as a sufficient predicate for a preclearance remedy.
Therefore, while sections 2 and 3 provide a measure of protection, they are inadequate. Section 2 was designed primarily to address vote dilution and its application to denial of voter access will require extensive litigation with uncertain outcomes. Section 3’s case-by-case approach to preclearance is too narrowly tailored and too expensive to be the sole means of asserting preclearance coverage. Its failure to include section 2 and other federal laws prohibiting voting discrimination as a predicate for a preclearance remedy poses an unnecessarily high bar to ordering preclearance. Moreover, it is unrealistic to think that litigants will have the resources to contest a multitude of local election changes.
The loss of broad preclearance coverage inflicted two additional harms that the current Act does not redress. First, preclearance was premised on recognition that it is very difficult to unwind an election change that is already in effect. It is rare that a court will postpone or invalidate an election and it is impossible to restore an individual’s vote after an election. Preclearance, of course, addressed that problem by requiring advance approval. In the absence of such a requirement, it is imperative to have an expedited and effective means for enjoining potentially discriminatory election changes, particularly those made close to an election.
Moreover, one of the benefits of the preclearance requirement was that it required all covered jurisdictions to submit for preclearance all voting changes, no matter how small. That meant that the Department of Justice was notified of each of the thousands of changes made each year from the state level down to the movement of polling locations in local communities. Discriminatory changes were forced to the surface. Without preclearance, many will never receive scrutiny.
Fixing the Act
In striking down section 4, the Court noted that Congress could revise the law. Many saw that invitation as a cynical gesture by a Court well versed in the dysfunction that prevents the current Congress from tackling major legislation, much less legislation that would identify select states for enhanced federal requirements. Yet, a bipartisan group in the House of Representatives, led by Reps. James Sensenbrenner (R.-Wis.) and John Conyers (D.-Mich.), introduced legislation in January that takes up the challenge. It now has 24 co-sponsors. Senator Patrick Leahy (D.-Vt.) has introduced similar legislation in the Senate.
The Voting Rights Amendment Act of 2014 addresses the major challenges posed by Shelby County. It offers an innovative approach to resuscitating section 4 through a “rolling trigger” formula. It also strengthens section 3, creates a more effective action for preliminary relief to enjoin election changes, and requires jurisdictions to publicize election changes. While flawed, the bill would do much to restore the effectiveness of the Voting Rights Act.
The Coverage Formula
Pursuant to the bill’s rolling trigger formula, each year the attorney general would look back 15 years to determine whether during that period any state had five voting rights violations within its borders, including at least one committed by the state itself. If it did, the state and its sub-jurisdictions would be required to preclear voting changes for 10 years after the last violation. Sub-jurisdictions outside covered states would be covered if they had three voting rights violations in the past 15 years. Voting rights violations include final judgments finding violations of the Constitution or section 2, attorney general objections under section 5, denials of declaratory judgments of preclearance in section 5 cases, and a combination of one violation plus persistent low minority turnout.
Current calculations suggest that if implemented today the formula would capture Texas, Louisiana, Mississippi, and Georgia and very few, if any, sub-jurisdictions outside those states. While it may be inevitable that any post-Shelby coverage formula will extend preclearance to fewer jurisdictions than were covered under the old formula, the absence from the list of jurisdictions such as Alabama and South Carolina highlights the problem of basing coverage largely on adjudicated voting rights violations. Previously covered jurisdictions were prevented for most of the years in question from implementing discriminatory voting practices and should not be expected to have multiple transgressions. The rolling trigger, however, has the potential to bring them into coverage through the annual reassessment of which places meet the trigger.
Unfortunately, the bill would not count toward coverage any attorney general objection that was based on the imposition of a “photo identification” requirement for voting. Such requirements plainly have the potential to violate section 5 by disproportionately blocking the access of minority voters to the ballot, as the three-judge court in Washington, D.C., found in blocking implementation of Texas’s voter identification requirement. The need for strict voter identification laws to prevent in-person vote fraud has been thoroughly debunked. This special exemption suggests that it is permissible to achieve partisan gain by limiting the franchise. That view has no place in a voting rights bill.
Section 3 Preclearance
The bill would expand section 3 to permit a court to order preclearance based on a violation of section 2 or “any Federal voting rights law that prohibits discrimination on the basis of race, color, or membership in a language minority group.” This expansion makes section 3 consistent with the understanding behind section 2 that a showing of discriminatory results is sufficient to trigger the injunctive power of a federal court.
Unfortunately, the bill states that a violation of section 2 based on the imposition of a photo identification requirement cannot serve as the predicate for imposition of preclearance. This provision is driven by the same disturbing view that limiting the franchise to gain partisan advantage is acceptable.
In recognition of the shrinking landscape of preclearance, the bill makes it easier for plaintiffs to obtain preliminary relief when they challenge a voting change. The bill would allow the plaintiff to prevail by showing that the balance of the harms favors the plaintiff. It would, therefore, streamline the traditional four-factor standard for preliminary relief. The provision would be improved by the requirement that the plaintiff make some showing on the merits as well. Because the goal of the provision is to make it easier for plaintiffs to block discriminatory enactments, the bill should require only that the plaintiff show that the complaint raises a serious question on the merits. This standard would be less onerous than the traditional showing of a likelihood of success on the merits but still ensure that there is something to the plaintiff’s case before a court granted preliminary relief.
The bill also lists a series of factors that a court should consider, primarily whether the change that is being challenged would replace a practice that was implemented after prior voting rights litigation, whether the change was adopted within 180 days of an election, and whether the jurisdiction has failed to provide timely notice of the change. The bill should make explicit that the presence of any of these factors would weigh in favor of blocking the change.
The bill would require jurisdictions to publicize any voting change that occurs within 180 days of an election for federal office, along with an explanation of the change. It would also require jurisdictions to report prior to 30 days before an election for federal office on the polling place resources that will be available at the election, including the location of polling places, the voting age population and number of registered voters served, the number of voting machines and poll workers, and the hours of operation. These requirements help to reinstate the early warning system that will be lost in jurisdictions no longer subject to preclearance.
Importantly, the bill would also require detailed reporting of changes in “the constituency that will participate in an election for Federal, State, or local office or the boundaries of a voting unit or electoral district” for such an election. This provision is designed to ensure that changes such as redistricting or from at-large to district-based elections will be publicized and the public will have the information necessary to evaluate whether the change may dilute minority votes.
The Voting Rights Amendment Act of 2014 addresses the significant gaps left by Shelby County, but it does not do so perfectly. The coverage formula appears under-inclusive, the standard for awarding preliminary relief needs to be tied more closely to the merits of the complaint, and the special treatment of voter identification requirements has no place in a bill that is serious about eliminating discrimination.
Despite these shortcomings, the bill is a strong start. The coverage formula’s under-inclusion results primarily from reliance on litigated discrimination as the measure of recalcitrance. This reliance protects jurisdictions that have been subject to preclearance and, therefore, have been less likely to be sued. Fortunately, the rolling trigger is designed to capture such jurisdictions if they discriminate in the future. The preliminary relief standard can be fixed by insertion of a requirement that a complaint raise a serious question on the merits.
Unfortunately, the exemptions for voter identification laws appear driven by rigid partisanship that is inconsistent with combatting discrimination. While reasonable identification requirements may well survive challenge, there is no place in a voting rights bill for toleration of draconian measures that sacrifice protections against discrimination to gain partisan advantage.
The road to enactment will be difficult. The current Congress is the least productive in modern history and its record in tackling major legislation gives scant reason for optimism. But Congress needs to rouse itself to respond to the Supreme Court’s extraordinary disdain for its constitutional authority and process. It needs to recapture the concern for fair, nondiscriminatory, and inclusive voting practices that has animated its repeated renewals of the Voting Rights Act. Martin Luther King Jr. famously reassured us that “the moral arc of the universe is long, but it bends toward justice.” This is one of those times when Congress needs to adjust the bend to keep the arc on track.