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Constitution Check: Is Section 3 of the Voting Rights Act a dead letter?

August 9, 2016 by Lyle Denniston

 

Constitution Daily Supreme Court correspondent Lyle Denniston explains why a little-used section of the Voting Rights Act may not have much, if any, impact on federal voter identification lawsuits.
The Voting Rights Act of 1965
The Voting Rights Act of 1965

THE STATEMENT AT ISSUE:

“We decline to impose any of the discretionary additional relief available under Section 3 of the Voting Rights Act, including imposing poll observers during elections and subjecting North Carolina to ongoing pre-clearance requirements….Such remedies ‘[are] rarely used’ and are not necessary here in light of our injunction.”

 – Excerpt from a decision July 29 by the U.S. Court of Appeals for the Fourth Circuit, striking down a North Carolina law requiring a photo ID to be able to vote, along with other restrictions on access to voting.  The court ruled that the state legislature had passed those limitations with the specific intent of discriminating against black voters.  The decision came in the case of North Carolina Conference of NAACP v. McCrory.  State officials have said they plan to take the case to the Supreme Court soon.

WE CHECKED THE CONSTITUTION, AND…

For the past three years, federal government officials and civil rights advocacy groups have been trying to find ways to enforce constitutional rights guaranteed to minority voters under the 1965 Voting Rights Act, in the wake of a Supreme Court decision that all but nullified one major part of that law.  But the strongest claim they have tried to put forth as a substitute does not seem to be working, even though they have won a series of rulings in recent weeks in favor of minority voters’ rights.

First, some background   The 1965 Voting Rights Act has always been considered the strongest law Congress ever passed to try to end racial discrimination in voting.  After decades in which federal officials always seemed to be one or more steps behind some state legislatures as they put up one barrier after another to minority voting, Congress decided that a more sweeping remedy was necessary.

For those states that had a lengthy history of racial bias in voting, Congress required them to get official clearance in Washington, D.C. – either from the Justice Department or from a special federal court – before they could put into effect any new law or rule that changed any aspect of voting, from registration to actual voting to ballot-counting.  This was widely considered to be a heavy blow to the states’ control over their own voting laws, and the states put under that legal supervision protested vigorously, but the law had the real-world effect that Congress intended: law after law restricting minority rights was denied advance approval in Washington – so-called “pre-clearance.”  That was included in the 1965 law as Section 5, with the states that would have to live under this regime selected by a formula spelled out in the Act’s Section 4.  Three years ago, in the case of Shelby County v. Holder, the Supreme Court struck down the Section 4 formula, finding it to be seriously out of date; many of the problems of voting rights discrimination had been corrected, the ruling said.

With the end of Section 4 came the practical effect that Section 5 pre-clearance was no longer enforceable against states if they passed or moved to implement new limitations on voting rights.

It did not take long for some of those states to act in response to the Shelby County decision.  In Texas, for example, within hours after that decision came down, state officials declared that they would start enforcing a photo ID requirement for voting despite challenges that it was racially biased.

In North Carolina, members of the state legislature moved even more boldly. They quickly ordered a study of the kinds of voting methods or practices that were used most often by minority voters, and then drafted new legislation to curb those that had been identified that way.  One was a new and more-strict photo ID law.  Others limited early voting and easy registration.  Sponsors of those measures said they were doing so to protect the integrity of voting; some said the bills were not based on race, but on ways to aid Republican candidates who seldom could draw minority votes.

Even though the Supreme Court had put Section 5 pre-clearance beyond reach, as a practical enforcement measure, the Shelby County ruling had left in place two other parts of the 1965 law.  One of those was Section 2.  But that had never been as successful as Section 5; it required opponents of new voting limitations to sue, one case at a time and basically meant that the challenges could come only after such laws had gone into effect.  The opponents had to have proof that the laws, in operation, did restrict minority voters’ rights.  Previously, civil rights groups had used Section 2 less often, because of the success they had under Section 5.

Also left intact by the Shelby County decision was another little-used provision: Under Section 3, if a court ruled that a voting rights measure that limited minority rights were actually passed with the specific aim of the legislature to restrict voting based on race discrimination, the state or local government involved could be put under a new pre-clearance regime, just like the one that existed in Section 5.   (Another still-intact part of Section 3 allowed for appointment of poll-watchers to make sure that minority voters actually were allowed to vote; it is far less onerous for states than pre-clearance.)  The Obama administration and civil rights groups began pressing for Section 3 remedies as they went ahead with new cases, following the Shelby County decision.

The Texas photo ID law has recently been barred from enforcement by a federal appeals court, but the potential remedy of pre-clearance under Section 3 remains uncertain in that case until after another round of proceedings in a federal trial court in Corpus Christi.

The North Carolina law, including its photo ID requirement, was struck down and barred from enforcement late last month by a different federal appeals court.  Challengers had specifically asked, among the available remedies, for a new pre-clearance requirement for North Carolina election laws.  With the appeals court’s finding of intentional race discrimination, based in part upon the state lawmakers’ efforts to single out voting methods used mainly by blacks and restrict only those, a Section 3 remedy was a realistic possibility for North Carolina.

The plea failed, in a few brief passages in the appeals court 83-page ruling.  Since it had barred enforcement of the restrictions, that would be enough, it concluded.  It cited only one precedent: a decision by a federal trial judge in Arkansas concluding that Section 3 had been “rarely used.”  That precedent came in 1994 when Section 5 and pre-clearance was still the main event in voting rights disputes.

For the time being, then, it is at least fair speculation that Section 3 – if it ever had a potentially major role to play – may turn out not to have much, if any, impact.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011. Denniston has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.

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