The Voting Rights Act is dead! Long live the Voting Rights Act!
Since the Supreme Court issued its extremely controversial decision in Shelby County v. Holder last month, the criticism has been constant and loud. It began with a passionate dissent by Justice Ruth Bader Ginsbug, and continued with a book review turned SCOTUS review by Retired Justice John Paul Stevens.
It may also be responsible, at least in part, for the plummeting SCOTUS approval rates, dropping below 50 percent for the first time in nearly three decades. Black respondents' disapproval rate has skyrocketed to 41 percent after the end-of-term decisions from only 24 percent disapproval back in March.
Despite the partial-gutting of the VRA, other sections remain, including the "bail-in" provision of §3(c). Late last week, we learned that the Obama administration plans to use that section in support of a challenge to Texas voting laws that many, including at least one federal court, say are discriminatory.
Shelby County's LimitedHolding
The court's holding in Shelby County v. Holder was actually quite limited, as it only struck down the §4(b) formula that automatically subject certain states, counties, and other jurisdictions, to federal oversight via preclearance. It didn't strike down §5, the preclearance procedure, or §3(c), the litigation path to federal oversight.
That leaves VRA oversight proponents with at least two remedies: pass a new §4(b) formula in Congress or litigate jurisdiction-by-jurisdiction via §3(c).
Trouble in Texas
The first state since Shelby County to feel the administration's wrath will be Texas, it seems. The state has been plagued in recent years with voting scandals and allegations of discrimination and gerrymandered political districting maps, reports The Associated Press. There is also a voter ID law that is in dispute.
In a speech last week to the National Urban League, Attorney General Eric Holder told listeners that the administration would file a statement of interest in support of private parties challenging the Texas laws. According to the AP, the Justice Department is seeking a preapproval requirement for at least ten years.
Last year, a district court in the District of Columbia held that the Texas laws had a discriminatory effect, but the court's §4(b) holding was made unenforceable by the Supreme Court's holding in Shelby County. The AP also interestingly notes that while a discriminatory effect sufficed for §4(b), actual intentional discrimination must be shown under §3(c).
The AP article notes that North Carolina could also be on the administration's radar, as that state just passed a number of voting law "reforms," including a voter ID requirement and heavy restrictions on voting times.
While the jurisdiction-by-jurisdiction battles required by §3(c) are certainly more difficult to enforce than the old preclearance-by-formula §4(b) procedures, those miffed by the court's holding in Shelby County can take solace in the knowledge that the rest of the law will provide at least some redress for discriminatory voting laws.
- The Voting Rights Act's secret weapon: pocket trigger litigation and dynamic preclearance (The Free Library)
- Justice Department Will Work Around the Supreme Court's Voting Rights Act Ruling (The Atlantic Wire)
- Minn. Rep. Tweets 'Uncle Thomas' Quip; Didn't Know it Was Racist? (FindLaw's U.S. Supreme Court Blog)