Articles on the Voting Rights Act are being filed in the “obituary” section, even though the act is less than fifty years old. Last week, a US Court of Appeals decision ruled against Shelby County, Alabama, which challenged the constitutionality of VRA’s Section 5. A three-judge panel ruled two to one that it was still constitutional, but the dissenting judge, Senior Circuit Judge Stephen F. Williams, asked some tough questions that will need to be resolved before the Supreme Court inevitably looks at it again (In 2009, SCOTUS punted on this issue, but expressed serious skepticism about Section 5’s vitality.) Wrote Judge Williams in his dissent:
Why should voter ID laws from South Carolina and Texas be judged by different criteria…from those governing Indiana? A glimpse at the charts shows that Indiana ranks “worse” than South Carolina and Texas in registration and voting rates, as well as in black elected officials. This distinction in evaluating the different states’ policies is rational?
South Carolina and Texas are “covered jurisdictions” under Section 5, while Indiana, which has a worse voting record, is not. As Williams pointed out, none of those three states are among the top ten worst offenders on voting rights. So the coverage formula needs to be reconsidered, Williams concluded. The coverage formula of Section 5 is the ankle bracelet for Southern states and counties (and a few Northern counties) that have been placed on house arrest for repeated voting rights violations mostly throughout America’s Jim Crow era. States like Alabama, Texas and South Carolina want courts to take that ankle bracelet off.
While those states claim they are no longer running errands for Jim Crow, Section 5 is set up to ensure that they never go back to doing it. How Section 5 works is that if a covered state or county wants to make election law changes, it needs pre-clearance from the Department of Justice or federal courts. To earn pre-clearance, the covered jurisdiction must prove that the law change won’t have “the purpose … nor the effect,” of racial discrimination. That’s important: It’s not enough to say you don’t intend to disenfranchise black or Latino voters; you must assure that racial disenfranchisement doesn’t become an unintended consequence.
In short, Section 5 is a precautionary principle agent. It forces certain jurisdictions to thoroughly think through voting legislation before implementation by proving first that it won’t harm, as opposed to allowing implementation first, and then dealing with any harm after it’s already been done. It prioritizes permission over forgiveness and recklessness, and yes, in some ways that limits some states’ and counties’ discretion, but our lesson learned from the twentieth century was that left to their own discretion, some states and counties will be reckless with voting rights and won’t even ask for forgiveness.
But Williams’ beef isn’t with Section 5, rather whom it’s applied to. If it’s true that some non-covered states are worse for voters of color than some covered states, then that’s problematic. If SCOTUS also finds it problematic, as they’ve already indicated they do, then that could be Section 5’s death knell. As Jeffrey Toobin observed in The New Yorker, “That melancholy observation led Williams to conclude that the Voting Rights Act should not apply anywhere anymore.”