by Noah Matthew Rich
For decades, the Voting Rights Act was hailed as one of the most successful pieces of civil rights litigation in history. Several months ago, the key piece of the Act—Section 5—was under attack. Noah Matthew Rich, Note, The Viability of Section 5 of the Voting Rights Act, 5 Geo. J. L. & Mod. Crit. Race Persp. 83, 84 (2013). Section 5 functions as a shield, rather than a sword: it requires certain jurisdictions (determined by a formula in Section 4) to seek “preclearance” of all proposed changes to voting laws, including qualifications and procedures, from the U.S. Department of Justice. Id. Among the proposed changes that the DOJ commonly oppose are laws that required voters to show photo identification at the polls—a requirement whose effects fall disproportionately on socioeconomically disadvantaged voters, among whom minorities are overrepresented.
Ironically, the opponents of the Voting Rights Act largely based their argument on the success of the Act; because it had been so successful in reducing racially discriminatory voting laws, it was no longer necessary or relevant today. See id. at 101. Ultimately, the Supreme Court left Section 5 intact, but struck down Section 4, holding that the coverage formula, based on 1972 data, was insufficiently related to modern patterns of discrimination to withstand constitutional scrutiny. Shelby County v. Holder, 133 S. Ct. 2612, 2631 (2013).
Many, including myself, were disheartened by the Court’s decision. Rather than “take into account the probable effects of eliminating the preclearance requirement,” the Court “conduct[ed] an analysis of Section 5 as if it were a new remedy.” Rich, supra, at 102. The Court ignored the “subtle deterrent effect” of Section 5 and the high likelihood that without preclearance, covered jurisdictions would enact discriminatory voting laws. Id. at 103.
These fears appear to have been well-founded. In the wake of the decision in Shelby County, “[s]tate officials across the South are aggressively moving ahead with new laws requiring voters to show photo identification at the polls.” Michael Cooper, After Ruling, States Rush to Enact Voting Laws, N.Y. Times (July 5, 2013), http://www.nytimes.com/2013/07/06/us/politics/after-Supreme-Court-ruling-states-rush-to-enact-voting-laws.html. In Texas, just five forms of identification are allowed. Voters can use concealed-handgun permits, but not student IDs, to prove their identity at the polls. Jess Bravin, Justice Department Sues Texas Over Voter-ID Law, Wall St. J. (Aug. 22, 2013), http://online.wsj.com/news/articles/SB10001424127887324619504579028911154804376. North Carolina’s law is similarly restrictive, and also “cut[s] back on early-voting days, eliminate[s] the ability of people to register to vote on the same day as casting an early ballot, and prohibit[s] the counting of provisional ballots cast by eligible voters who went to the wrong precinct.” Charlie Savage, Justice Department Poised to File Lawsuit Over Voter ID Law, N.Y. Times (Sept. 30, 2013), http://www.nytimes.com/2013/09/30/us/politics/justice-department-poised-to-file-lawsuit-over-voter-id-law-in-north-carolina.html. All of these restrictions disproportionately affect minorities, and it is unlikely that these laws would have passed preclearance.
The Justice Department is taking advantage of another provision of the Voting Rights Act to attempt to stop these new laws from taking effect by suing the jurisdictions that have enacted them. Id.; Bravin, supra. However, post hoc challenges to discriminatory policies are likely to be insufficient for three reasons. First, some of the laws with the most pernicious effects are the most difficult to detect. For example, moving a polling place from a majority-Black to a majority-White neighborhood might effectively disenfranchise many minority voters. Before Shelby County, such a shift would be subject to preclearance, but it is virtually impossible to find and challenge every seemingly minor change. Second, even if it could detect every change, the Justice Department has limited resources. It is currently challenging voter ID laws in Texas and North Carolina, but seeking out and challenging every potentially discriminatory voting law is impossible. Indeed, this impossibility was an important reason behind Congress’ original decision to pass the Voting Rights Act and enact the preclearance requirement in 1965. Third, it is unclear whether courts will be sympathetic to post hoc challenges. In 2008, the Supreme Court refused to apply strict scrutiny in upholding an Indiana voter ID law, Crawford v. Marion County Election Board, 553 U.S. 181 (2008), that critics decried as “a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic,” Crawford v. Marion County Election Board, 472 F.3d 949, 954 (7th Cir. 2007) (Evans, J., dissenting), and that even Judge Posner, who wrote the majority opinion upholding the law in the Seventh Circuit, now acknowledges should have been held unconstitutional, John Schwartz, Judge in Landmark Case Disavows Support for Voter ID, N.Y. Times (October 15, 2013), http://www.nytimes.com/2013/10/16/us/politics/judge-in-landmark-case-disavows-support-for-voter-id.html. After the Supreme Court gave the stamp of approval to that law, judges in the lower courts may be disinclined to rule in favor of challenges to other voter ID laws.
It remains to be seen how effective the DOJ will be in combating this new wave of discrimination, but there is reason to be pessimistic. Unless Congress can unite in a rare moment of bipartisanship to rewrite the formula of Section 4, the Voting Rights Act will be, at best, a shell of its former self, and at worst, a nearly useless piece of legislation.