Shelby County's Damage to Voting Rights
With no coverage formula in place, however, Section 5 is largely an empty promise and cannot be enforced. Indeed, preclearance of voting changes will not be available at all, except in the few circumstances described under the “bail-in” provision of Section 3. Thus, there is currently no generally applicable pre-implementation backstop against discriminatory voting changes, which, prior to the Supreme Court’s ruling, were required to be precleared in all or part of 16 states. Justice Roberts’ majority opinion in Shelby County issued a challenge to the Congress to come up with a constitutional coverage formula or risk a long-term or permanent loss of Section 5’s preclearance provision.
Some of the academic and political debate since the decision has focused on Section 2 of the VRA, and whether it is an equally effective tool for plaintiffs raising racial discrimination claims under the Voting Rights Act. But anyone familiar with the history of litigation under Section 2 would have to conclude it is not. (It should also be noted that some of the same “experts” who have sung the praises of Section 2 in recent days have expressed doubts about its constitutionality.) Of course, Section 2 applies nationwide and prohibits voting discrimination on the basis of race, color, or language minority status. However, unless a court grants an injunction, which is extremely rare in Section 2 cases, it can only be used once an allegedly discriminatory law goes into effect and not before.
Litigating a Section 2 case is also far more expensive and time-consuming than a Section 5 preclearance case, even when the jurisdiction chooses to go to court rather than opting for administrative preclearance, which is by far the cheapest and quickest alternative. In addition, Section 5 also requires covered jurisdictions to inform the Department of Justice of all of their voting changes, to the great benefit of the public. Without this systematic information flow, it will be nearly impossible for interested parties to be aware of new laws and procedures at all levels of government until they are implemented, when it is often too late to combat them without deleterious effects on voters and on the electoral process itself.
Whether by enacting a new coverage formula under Section 4, strengthening the litigation remedy available under Section 2, or expanding the “bail-in” provision under Section 3 (or some combination of these concepts), Congress must act to redress the severe blow the Supreme Court dealt voting rights in Shelby County. The ABA should be on record in support of the continuing vitality of the Voting Rights Act, as it has been for many years.