arlier this summer, the U.S. Supreme Court gutted the most potent provision of the Voting Rights Act: Section 5, which had required nine states and a number of individual counties with long histories of voter discrimination to clear any new election law changes with the feds. In the weeks since the decision, voting rights advocates have been searching for new strategies to protect voting rights. And now, in recent days, a previously ignored portion of the Voting Rights Act has become a key tool in the fight. Advocates—as well as Attorney General Eric Holder—are hoping Section 3 will prove to be a powerful tool in the face of an onslaught of voting restrictions from Republican legislatures—and can at least partially replace the much stronger voter protections the Supreme Court took away. Since that Supreme Court decision, the states that had been covered by Section 5 have run roughshod over voting rights. Texas has set about implementing a voter ID law—previously nixed by the DOJ under the Section 5—that would require some people to drive 176 miles round trip on a weekday to get the government-issued photo ID they’ll now need to vote. In Florida, Governor Rick Scott has announced he would re-start a purge of non-citizens from the voter rolls. North Carolina, for its part, passed what is likely the most sweeping set of voting restrictions since the original Voting Rights Act was passed.
As anyone will tell you, there’s nothing in the law that’s nearly as protective as Section 5. Section 5 required states with histories of voting discrimination to get clearance from the feds before any changes to elections law could go into effect. The Department of Justice or the D.C. Circuit Court had to ensure that new laws did not intentionally discriminate and that they would not have a discriminatory effect—and the states bore the burden of proof. With Section 5 out of the picture, advocates are looking for whatever they can use to fight discriminatory voting laws. One law professor compared it to setting out to build a house and discovering that your power-tools were gone. Section 3 and other provisions function like hammers and saws—capable tools but not nearly as efficient or effective.
Section 3 does hold some promise. Under its rules, if plaintiffs show that a state or jurisdiction has intentionally discriminated, they can ask the judge to require the state or county to get permission from the feds before new elections laws go into effect. Groups in three states have asked judges to make such a requirement and the Department of Justice has voiced its support. So, while prior to June’s ruling, Section 3 was relatively obscure even among legal experts, it’s now in the spotlight.
The Department of Justice (DOJ) announced it would try to use Section 3 to bring more states back under preclearance. In an ongoing Texas redistricting case, civil rights groups and the DOJ have requested that the court consider requiring Texas to get “bailed in,” meaning it will have to submit to preclearance. A Native American tribal group in Alaska has made the same request after ballots were repeatedly not made available in tribal languages. There’s a case in Montana calling for preclearance as well. And most recently, the plaintiffs bringing a lawsuit against North Carolina’s new voting laws have asked for the state to be bailed in.
Full Article: Get to Know Section 3 of the Voting Rights Act.