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There’s Still Room to Fix This

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Alan J. Lichtman

By a 5 to 4 vote along predictable ideological lines the Supreme Court struck down Section 4 of the Voting Rights Act, which designates the states and jurisdictions covered by the critical pre-clearance requirements of the Act’s Section 5. The ruling does not invalidate Section 5, but makes it unenforceable.

Under the current formula, states and some localities, mostly in the South, with a history of racial discrimination and low minority participation in voting must pre-clear with the U.S. Department of Justice any change in voting practices, including redistricting plans and voter identification laws. The Justice Department can object to a voting change if it either was adopted with discriminatory intent or if it retrogresses existing voting opportunity for minorities. A Justice Department objection is not final. Jurisdictions can still appeal such rulings to the U.S. District Court in the District of Columbia. However, in such proceedings, the jurisdiction, not the Justice Department has the burden of proof.

The elimination of Section 5 enforcement does not end voting rights litigation. Civil rights organizations, private plaintiffs and the Justice Department can still sue jurisdictions under Section 2 of the Voting Rights Act. The scope of Section 2 is actually broader than that of Section 5. Plaintiffs can prevail by showing that a challenged practice or procedure was either adopted with discriminatory intent or has the effect of diminishing minority voter opportunities, a standard that is not limited to retrogression. However, under Section 2, plaintiffs not jurisdictions have the burden of proof and have to wait until new voting changes are enacted.

The Court’s majority found that the discriminatory practices that warranted pre-clearance coverage under Section 5 no longer apply today. Although blatant racial discrimination has diminished, more subtle forms of intentional discrimination continue to exist, especially in covered jurisdictions, according to recent studies. In 2012, for example, a three judge panel of the U.S. District Court in D.C. found that Texas had intentionally discriminated against minorities in its redistricting plans for the State Senate and Congress. Another three judge court rejected Texas’s new photo identification law. The court did not reach the issue of intent because it found that Texas had failed to prove that the law did not discriminatorily reduce opportunities for minorities to vote in Texas elections.

In 2006, Congress renewed the Voting Rights Act by votes of 390-33 in the House and 98 to 0 in the Senate, with Sections 4 and 5 intact. The Court has left room for remedial action by striking down only Section 4. Congress could broaden coverage through new criteria under a rewritten Section. Only a groundswell of public pressure, however, would likely persuade legislators to adopt such a reform.

Allan J. Lichtman is Distinguished Professor of History at American University in Washington, D.C. His has authored or co-authored eight books, including most recently, FDR and the Jews (Harvard, 2013, with Richard Breitman), a New York Times Editor’s Choice Book.

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