Update 6/25/2013: The Supreme Court Tuesday ruled that the coverage formula used to determine which areas are covered under Section 5 is unconstitutional. The decision effectively ends Section 5 unless Congress comes up with a new formula.
Voting-rights advocates hope the Supreme Court won’t rule against Section 5, a key piece of the Voting Rights Act. But while they wait for the decision to be handed down, they’re already strategizing for a post-Section 5 world.
“If the Court struck down or weakened Section 5, it would lead to the largest rollback of American democracy since the end of Reconstruction,” Wade Henderson, the president of the Leadership Conference on Civil and Human Rights, told reporters Wednesday.
Shelby County, Ala., is challenging the constitutionality of Section 5, which allows the U.S. Justice Department to block any proposed election changes made by certain areas with a history of racial discrimination—mostly in the south—if those changes might reduce the voting power of minorities. Many Court observers expect that the ruling, which could come as soon as Thursday, will strike down or significantly water down Section 5.
Rep. Jim Sensenbrenner, the Wisconsin Republican who led the 2006 effort to reauthorize the Voting Rights Act, is signaling that if that happens, he’ll pursue legislation to undo the damage.
“If part or all of Section 5 is struck down, Congressman Sensenbrenner will review the Court’s decision and take the necessary action to ensure voting rights are protected,” Ben Miller, a spokesman for Sensenbrenner, said in a statement to msnbc.
Voting-rights advocates say they’re beginning talks with friendly lawmakers in both parties on Capitol Hill toward the same end. One potential approach, said Deborah Vagins, the ACLU’s senior legislative counsel on civil rights, would be to strengthen remaining parts of the Voting Rights Act so that they bar not just intentional discrimination, but also actions with discriminatory effects, as Section 5 does. “The goal is that we recapture in legislation as much as possible of what we lost,” Vagins told msnbc.
Vagins noted that Congress reauthorized the Voting Rights Act in 2006 by overwhelming majorities. “It’s possible that if they view this as an attack on their constitutional Congressional authority, and they’re reminded of the bipartisan history, that this is something that we can get done in the near term,” she said.
Still, given the GOP caucus’s recent rightward shift, as well as the general partisan gridlock of Capitol Hill, even supporters of the strategy say it would be a heavy lift.
There are four main ways the court could rule: it could strike down Section 5 entirely, finding that by singling out certain areas for special scrutiny, it violates the Constitution’s Equal Protection Clause. Or it could technically uphold Section 5, but tell Congress it must find a different formula to decide which areas are covered. Third, it could decide that given its record of racial discrimination in elections, Shelby County doesn’t have the right to mount a broad “facial” challenge to Section 5, essentially punting on the issue. Finally, it could simply side with the Obama administration, finding Section 5 to be constitutional under the 15th amendment, which protects the right to vote.
Either of the first two outcomes, which appear to be the most likely, would be counted as wins for conservative opponents of Section 5. A report released Wednesday by the Brennan Center for Justice warned that if Section 5 is struck down or weakened, states or localities could immediately try to revive discriminatory voting measures that had been blocked or deterred by the provision, or impose new ones. The report found that in the most recent legislative session alone, 28 restrictive voting bills had been introduced as of the end of April in states that are covered, wholly or in part, by Section 5.
A ruling striking down Section 5 would likely create a high degree of confusion and uncertainty about the status of measures blocked by Section 5. For instance, a spokeswoman for Texas Attorney General Greg Abbott recently told msnbc that if Section 5 is struck down, Texas will take the position that its strict voter ID law—passed in 2011 and blocked by Section 5 last year, after a court found it could disenfranchise large numbers of black and Hispanics—would take effect immediately.
Whether that stance ultimately carries the day will depend in part on how the court ruling addresses the question of what happens to measures that were previously stopped by Section 5, known as “retroactivity.” Supporters of voting rights are concerned on that front.
“If they deem that Section 5 is not constitutional for some reason, then I do think it calls into question previous denials of pre-clearance,” Laura Murphy, the director of the ACLU’s legislative office, told msnbc, referring to the process by which the Justice Department or the courts block proposed election changes. “And that’s a nightmare.”
To be sure, without Section 5, tools will still exist to prevent racial discrimination in voting—among them, Section 2 of the Voting Rights Act, parts of the National Voter Registration Act and the Help America Vote Act, and provisions in some state constitutions. But none are as strong as Section 5 because they put the burden of proof on the alleged victims, forcing them to file time-consuming and costly litigation after the fact, when the damage often has already been done. Section 5, by contrast, requires the jurisdiction looking to make the change to first prove that it won’t hurt minorities before the new porcess can go into effect.
“The alternatives in the current law are not effective enough,” Myrna Perez of the Brennan Center told reporters on a conference call Wednesday.
“This is a real turning point in American history,” said Murphy of the ACLU. “You had the promise of the 15th amendment that was enacted in 1870…And then you had a brief period of Reconstruction, and then a long period of Jim Crow until 1965. So essentially, African-Americans have never had this period of consistent voting protections in the history of the country.”
Knocking down Section 5 “could be a big game-changer,” Murphy added.