Constitution Daily

Smart conversation from the National Constitution Center

Upcoming elections at the heart of new Voting Rights Act battle

June 26, 2013 by Scott Bomboy


The Supreme Court’s decision to effectively shut down key sections of the Voting Rights Act of 1965 sent shockwaves through political circles on Tuesday, because it will affect how voting districts are drawn, and it could lead to more drama in Congress.

800px-University_at_Buffalo_voting_boothUnder the old law, the Justice Department had the right to approve voting changes in states and districts that had shown a pattern of discriminatory behavior, determined by a formula set in 1965 and updated in the 1970s.

Section 5 of the Voting Rights Act gave the Justice Department this power of “pre-clearance, ” with the ability to overturn any election-rules laws passed by a state on the pre-clearance list, including how Congressional districts were drawn.

Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia were on the list of states that required pre-clearance.

It also gave the Justice Department the ability to remove states and districts from its list of pre-clearance regions.

Section 4 let Congress establish the formula for determining if a state or district had a history of discrimination. The Supreme Court decided on Tuesday that the current formula was unconstitutional.

Now, Section 5 is currently suspended, until Congress can agree on a new formula for determining what states fall on the pre-clearance list.

A third part of the law, Section 2, was untouched by the Court. It prohibits voting practices or procedures that discriminate on the basis of race, color, or membership” in language minority groups identified in the law. People and groups can file complaints about Section 2 violations after they happen.

The immediate effects of the Supreme Court decision on how elections are run are two-fold.

First, the court's decision will play a part in the continuing battle over voter identification laws.  In Texas, that state’s attorney general said he’ll enact a state law that had been blocked by the Justice Department.

“With today’s decision, the State’s voter ID law will take effect immediately,” Attorney General Greg Abbott said. “Redistricting maps passed by the Legislature may also take effect without approval from the federal government.”

Recent Stories On Supreme Court

Town Hall debate: McConnell and Rosen on the Voting Rights Act

Supreme Court sets timing for same-sex marriage rulings

Supreme Court strikes down key part of Voting Rights Act

Updated: Our Supreme Court scorecard

The issue of redistricting will also get a lot of attention, too.

The Washington Post pointed to one contentious issue: the possible break-up of “majority-minority districts” in states that were on the pre-clearance list.

A majority-minority district is predominantly made up of minority voters as considered under the Voting Rights Act. In the pre-clearance states, people who draw up district maps were required to make sure some majority-minority districts existed.

“With Section 5 not currently enforceable, states might consider undoing some of those districts — moving reliably Democratic black and Hispanic voters into other more Republican-leaning seats and in some states making it less likely that those seats would elect Democrats,” said the Post’s Chris Cillizza.

There will still be court challenges over redistricting, using other means.

Rick Pildes, an election law expert at New York University, also told the Post that there are plenty of laws on the books that can be used in a redistricting case.

“There are a lot of other laws by now, both statutes at the national and local level, that provide mechanisms for challenging objections to voting,” he said. “These voter ID laws, those were struck down in many parts of the country through litigation under state constitutions in areas that section 5 doesn’t apply to.”

The redistricting issue will also be part of the Congressional debate over a rewrite of Section 4 of the Voting Rights Act – when that happens.

There is little optimism in Washington that the House or Senate will move to tackle the Voting Right Act issue soon.

“I think the political realities make this highly unlikely,” said Erwin Chemerinsky, a professor at the University of California, Irvine School of Law, on a conference call after the decision. “What formula can you get a majority of Congress to approve?”

“The reason we will not see Congress act is politically they are unwilling to,” said Roger Clegg from the Center for Equal Opportunity. Clegg said the Court warned Congress in a prior decision that it had to rewrite Section 4 and Congress never acted.

John Cornyn, a top Senate Republican from Texas, said Congress needs to come up with a formula that reflects society today.

“The [old] formula really reflects the state of play back in the mid-60s. And it’s never been updated to reflect the reality today, which is that the Voting Right Act has actually worked,” he said. “There’s universal support for the Voting Rights Act. This is a fundamental part of who we are. But I think in fairness it does make sense to update it to reflect the current reality.”

Representative John Lewis, a Civil Rights icon, said in a strongly worded statement that Congress needs to act.

"I am deeply concerned that Congress will not have the will to fix what the Supreme Court has broken.   I call upon the members of this body to do what is right to insure free and fair access to the ballot box in this country," he said.

And in the states that are now off the pre-clearance list, there isn’t a sense that Sections 4 and 5 need to return.

"This is a victory for all voters, as all states can now act equally, without some having to ask for permission or being required to jump through the extraordinary hoops demanded by federal bureaucracy," South Carolina Attorney General Alan Wilson said on Tuesday.


Sign up for our email newsletter