Editorials: Shelby County v. Holder: Forget the coverage formula, what about the effects test? | Joshua Thompson/SCOTUSblog

The upcoming oral argument in Shelby County v. Holder is not likely to produce any surprises – we had a sneak preview four years ago in Northwest Austin Municipal Utility District Number One v. Holder.  While Northwest Austin ultimately turned on the tiny district’s eligibility to bail out from Section 5’s provisions, the oral argument centered on the broader question of Section 5’s constitutionality. The arguments in Shelby County will likely rehash those same arguments fromNorthwest Austin. In defense of Section 5, the United States will argue that most of the targeted jurisdictions have a lengthy history of intentional discrimination. Shelby County will counter that “current burdens … must be justified by current needs.”  The United States will argue that but, for Section 5, covered states would revert to the blatant intentionally discriminatory practices that once justified Section 5.  Shelby County will respond that such an argument assumes the culture of the South hasn’t changed in the past fifty years. The United States will also argue that the Court should defer to Congress’s 16,000-page record. Shelby County will respond that deference is uncalled for, and that the congressional record – no matter how large – fails to contain contemporary evidence that justifies singling out the covered jurisdictions.

Editorials: Shelby County v. Holder: Bad behavior by DOJ contributes to the fall of Section 5 | Christian Adams/SCOTUSblog

There are three main reasons why I think Section 4 of the Voting Rights Act – which outlines the formula that is used to determine whether a jurisdiction is “covered” by the preclearance requirement created by Section 5 – will be struck down in Shelby County v. Holder, scheduled for argument at the Court on February 27. Remember, of course, that Section 4 triggers are at issue, not the substantive provisions of Section 5. Even if Section 4 triggers survive Shelby County, two new challenges will then follow.  First, depending on how the opinion is written, the states brought into Section 4 coverage through the 1975 amendments may still have a challenge.  The statutory triggers for Alabama are not precisely the same as the triggers for Arizona or Alaska, two states which must also seek Section 5 preclearance. Even if the plaintiffs in Shelby County lose, Arizona and Alaska wait in the wings.  These states were brought into Section 4 coverage based in large part on minority language issues, and nowhere in the Fifteenth Amendment is language discussed.  Race is.  Of course, the Court may wipe out this claim depending on how the opinion is written, or, it may invite the next wave even while upholding triggers for Alabama.

Editorials: Obama Says We Need to Fix Voting Lines. But How? | ProPublica

At tonight’s State of the Union address, Michelle Obama will be joined by 102-year-old Desiline Victor, who, like many in Florida and elsewhere, waited hours to vote on Election Day. “By the way,” Obama said in his election speech. “We have to fix that.” But how to fix it remains unclear. Though new research on states’ performance in the November election reveals long lines kept thousands from voting, there’s still much we don’t know about what would best speed up the process. Victor’s home state of Florida had the longest average wait timeof any state at 45 minutes. Victor waited for three hours. Other Floridians reported standing in line for up to 7 hours. Not every voter had Victor’s stamina: Professor Theodore Allen at Ohio State University estimated that long lines in Florida deterred at least 201,000 people, using a formula based on voter turnout data and poll closing time. The number only includes people discouraged by the wait at their specific polling site, and not those who stayed home due to “the general inconvenience of election day.” The real number, Allen says, is likely much higher. One study also showed that black and Hispanic voters nationwide waited longer on average than white voters.

Editorials: What of congressional power over voting? | Franita Tolson/The Great Debate (Reuters)

If the Supreme Court strikes down Section 5 of the Voting Rights Act in Shelby County v. Holder, the focus will turn to Congress and the question of what legislation it should enact in place of Section 5. An equally compelling question is what will happen to the scope of congressional authority over elections. In City of Boerne v. Flores (1997), the court identified the Voting Rights Act as the ideal piece of remedial legislation, perfectly tailored to address the harm of voting discrimination and therefore an “appropriate” use of congressional authority. The court made this determination without discussing the combined authority of Congress under the 14th and 15th Amendments to regulate state and federal elections. The decision focused only on authority granted under the 14th Amendment.

Editorials: Voting Rights 2.0: How the Supreme Court could make the VRA better instead of striking it down | Emily Bazelon/Slate Magazine

Congressional District 23 cuts across a rural swath of southwestern Texas, from the state’s border with New Mexico, hundreds of miles south along the Rio Grande, stretching east to San Antonio. It’s among the least densely populated terrain in the country—and the most electorally disputed. The district was created in 1967, two years after the passage of the Voting Rights Act. The voters of District 23 sent a Democrat to Congress every term until the 1992 election. At that point, following the 1990 census, which gave Texas three additional seats, District 23 was redrawn to include a Republican-leaning part of San Antonio. Republican Henry Bonilla won the 1992 election. And in 2003, the district was redrawn again to keep him there, by moving 100,000 Latinos out. Bonilla was still in office in 2006, when the Supreme Court ruled that District 23 violated the Voting Rights Act. The act bars states and cities from discriminating against minority voters with crude tools like poll taxes and literacy tests (and in our time, some voter ID requirements); it also aims to ensure that when district lines are redrawn, they can’t be gerrymandered in a way that dilutes the electoral power of minorities. District 23 was supposed to be a Hispanic opportunity district—one in which Latinos could potentially elect their preferred candidate despite the racially polarized voting patterns of Anglos in the area. From ’92 on, Latinos were voting against Bonilla in greater numbers each time, nearly ousting him in 2002. But the 2003 map, the Supreme Court said, in essence “took away the Latinos' opportunity because Latinos were about to exercise it.”

Editorials: Shelby County v. Holder: Reasons to believe | Michael J. Pitts/SCOTUSblog

With the Shelby County case, the Supreme Court has provided itself with a “clean” litigation vehicle to strike down Section 5 of the Voting Rights Act.  In academic circles, the conventional wisdom seems to be that the seminal preclearance provision of the Act is a goner.  Indeed, academics are already conducting online forums speculating about what comes next after the Court dismantles Section 5. But are there any reasons to think that Section 5 might survive?  Although Section 5’s position seems precarious, let’s consider three reasons why Shelby County might turn out differently than the conventional, academic wisdom holds. Why the wait? A little less than four years ago, the Supreme Court had Section 5 teed up to be declared unconstitutional.  In Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO), a majority of the Court easily could have sunk the preclearance provision if they so desired.  Instead, the Court opted to engage in a less than credible interpretation of the statute that allowed the Court to duck the constitutional question.  If the Court now is hellbent on using Shelby County to declare Section 5 unconstitutional, why the wait?

Editorials: Shelby County v. Holder: Why Section 2 now renders Section 5 unconstitutional | Hashim Mooppan/SCOTUSblog

The Fourteenth and Fifteenth Amendments proscribe intentional racial discrimination in voting, and Section 2 of the VRA already vigorously “enforces” those constitutional proscriptions by imposing a prophylactic nationwide ban on voting practices that are judicially determined to cause discriminatory “results.”  Accordingly, Section 5 of the VRA – which additionally imposes an extraordinary preclearance regime on all voting changes in selectively covered jurisdictions – can be justified as an appropriate “enforcement” measure only insofar as it targets potentially unconstitutional voting practices that are somehow beyond the effective reach even of Section 2’s ordinary anti-discrimination litigation. This is common sense, but it is much more than that.  The Supreme Court consistently has relied upon this limited remedial justification for Section 5 when upholding and construing prior versions of the statute.  Indeed, the Court has strongly suggested that exceeding this narrow supplemental function would impose excessive burdens on covered jurisdictions and could require excessive consideration of race in electoral decision making, thereby drawing Section 5 into conflict with the very constitutional provisions that it purports to “enforce.”

Editorials: More applicants, diversity needed for Austin redistricting panel | www.statesman.com

Not enough Austinites — in particular, not enough minority and female Austinites — have applied to serve on a commission that will transform city politics, city officials say. The 14-member commission will draw the boundaries of 10 City Council districts, to carry out a plan voters approved last fall to shift the City Council from seven citywide members to 10 district representatives and a citywide mayor. The first election of council members under the new system will be in November 2014. The city since late January has been urging residents to apply for the map-drawing commission. So far, it has received only 98 applications, all but a handful from white men. Only five applicants are Hispanic, two are black and one is Asian. And the application deadline ends in just two weeks.

Editorials: Ecuador’s election: The man with the mighty microphone | The Economist

New highways and motorways snake across Ecuador, lined with billboards reminding drivers how bad the Andean country’s potholed road network was until Rafael Correa was first elected as president six years ago. The towns and villages boast new schools and health clinics. The minimum wage has risen well above inflation, and some 2m poorer people (in a population of 14.5m) get monthly cash transfers. Free school uniforms and subsidised mortgages all help to give ordinary Ecuadoreans the sense that “most things are being done right,” says Pili Troya, a civil servant, who plans to vote to give Mr Correa another four-year term in the country’s general election on February 17th. In his campaign advertisements Mr Correa, a good-looking, smooth-tongued 49-year-old economist, presents himself as the man who turned his country round, after several years of political instability and economic humiliation, which included the collapse of the currency and its replacement by the American dollar in 2000. He rails against the IMF, bankers and privatisations. “Ecuador is no longer for sale,” he cries. “The country of despair has become one of hope”.

Editorials: If the Supreme Court strikes down Section 5 – Watch out in the covered jurisdictions | Michael J. Pitts/The Great Debate (Reuters)

If the Supreme Court strikes down Section 5, Congress is unlikely to pass any sort of “New Voting Rights Act.” So when thinking about what happens next, we need to focus on what voting changes the jurisdictions now subject to oversight might enact that would violate Section 5’s principal aim of preserving minority voting strength. In doing so, there are two dichotomies to consider: one between state legislatures and local governments, the other between voting changes related to ballot access, such as voter registration, and those related to vote dilution, such as redistricting. When it comes to state governments and vote dilution, states seem unlikely to dismantle districts that give minority voters clout — the “safe” districts that often have a majority of minority population. One reason it’s unlikely is that most of the states under Section 5 oversight are controlled by Republicans, and Republicans often perceive safe minority districts as politically favorable because they pack reliable Democratic voters together. That’s not to say all states will preserve all such districts—there will undoubtedly be outliers. But massive retrogression of minority voting strength on the statewide level seems unlikely.

Editorials: Why Are Conservatives Trying to Destroy the Voting Rights Act? | The Nation

In 2006, Congress voted overwhelmingly to reauthorize key provisions of the Voting Rights Act of 1965 for another twenty-five years. The legislation passed 390–33 in the House and 98–0 in the Senate. Every top Republican supported the bill. “The Voting Rights Act must continue to exist,” said House Judiciary chair James Sensenbrenner, a conservative Republican, “and exist in its current form.” Civil rights leaders flanked George W. Bush at the signing ceremony. Seven years later, the bipartisan consensus that supported the VRA for nearly fifty years has collapsed, and conservatives are challenging the law as never before. Last November, three days after a presidential election in which voter suppression played a starring role, the Supreme Court agreed to hear a challenge to Section 5 of the VRA, which compels parts or all of sixteen states with a history of racial discrimination in voting to clear election-related changes with the federal government. The case will be heard on February 27. The lawsuit, originating in Shelby County, Alabama, is backed by leading operatives and funders in the conservative movement, along with Republican attorneys general in Alabama, Alaska, Arizona, Georgia, South Carolina, South Dakota and Texas. Shelby County’s brief claims that “Section 5’s federalism cost is too great” and that the statute has “accomplished [its] mission.”

Editorials: Texas overreaches again on voting rights in Shelby County case | Linda Campbell/Fort Worth Star-Telegram

To hear state Attorney General Greg Abbott tell it, the U.S. Supreme Court should strike down part of the federal Voting Rights Act in an Alabama case because the Justice Department bullied Texas over its voter ID law. Never underestimate Abbott's capacity to make a dispute all about his fight for truth, justice and the Texas way. The case of Shelby County v. Holder, on which the justices will hear arguments Feb. 27, challenges the constitutionality of Section 5 of the Voting Rights Act. That part of the landmark federal law, last reauthorized in 2006, requires Texas and a small number of other states to get permission from the Justice Department or a federal court for any changes that would affect voting, an effort to prevent illegal discrimination. Included would be steps like redrawing electoral districts, switching from at-large to single-member representation, adding seats to an elected body and new rules for casting a ballot.

Editorials: Washington State needs Voting Rights Act | The Seattle Times

The proposed Washington Voting Rights Act is about true representation in local elections. Lawmakers should pass House Bill 1413and send it to the governor’s desk. Washington is known for progressive ideas, but it also faces another stark reality: Minorities in some parts of the state have little influence on important decisions that affect their schools, public safety, water use and land resources. HB 1413 would allow individuals and groups to seek redress by challenging communities to switch to district-based elections. This is how congressional races are run. Why not municipal elections?

Editorials: Stakes are enormous in voting rights case | Erwin Chemerinsky/ABA Journal

The Voting Rights Act of 1965 is one of the most important civil rights statutes in American history. The constitutionality of a crucial provision of the act—Section 5—is in doubt, and the case that challenges it, Shelby County v. Holder, will be argued before the Supreme Court on Feb. 27. Section 5 is important because of another provision, Section 2 of the Voting Rights Act, which prohibits voting practices or procedures that discriminate on the basis of race or against certain language minority groups. Under the 1982 amendments to Section 2, the act is violated by state or local laws that have the effect of disadvantaging minority voters. Lawsuits may be brought to challenge state or local actions that are alleged to violate Section 2. But Congress, in adopting the Voting Rights Act, concluded that allowing lawsuits to challenge election procedures was not adequate to stop discrimination in voting. Congress was aware that Southern states especially often invented new ways of disenfranchising minority voters. Section 5 of the Voting Rights Act was adopted to prevent such actions. It applies to jurisdictions with a history of race discrimination in voting and requires that there be preapproval—termed "preclearance"—of any attempt to change "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" in any "covered jurisdiction." The preapproval must come either from the U.S. Attorney General, through an administrative procedure in the Department of Justice, or from a three-judge federal court in the District of Columbia through a request for a declaratory judgment.

Editorials: Partisanship raises stakes of Supreme Court statutory rulings | FierceGovernment

Partisanship within Congress has raised the stakes for Supreme Court statutory law rulings, since bipartisan legislative overrides of Supreme Court interpretations have greatly diminished and partisan overriding is much rarer, argues a paper from University of California-Irvine law professor Richard Hasen. In a paper to be published in the Southern California Law Review, Hasen also warns that a similarly politically polarized Supreme Court in combination with a highly partisan Senate could make a future court nomination a major political crisis and ultimately diminish the public legitimacy of the court. Hasen's analysis of congressional overrides of Supreme Court interpretation of federal statues--something that requires a new federal law, as opposed to a constitutional override, which requires a new constitutional amendment--shows they fell to 2.8 overrides every 2 years on average from 2001 through 2012 from a recent peak of 12 overrides every 2 years on average from 1975 through 1990.

Editorials: Extend hold on Pennsylvania voter ID | The Times-Tribune

This May's primary election ballot likely will be somewhat confusing in most counties, due to large numbers of candidates seeking party nominations for school boards, municipal government seats, tax collector positions and judgeships. In Lackawanna County that likely will be compounded by at least one but, probably, two referendums on the structure of the county government. One, approved by the county commissioners, will ask voters if they approve consolidating the recorder of deeds, clerk of judicial records and register of wills offices into a single office, and converting the sheriff's job from an elected to an appointed position. Since it is unknown how voters will respond, candidates will seek nominations for the deeds and wills offices and sheriff's office, in case voters decide to retain the current system. (The clerk of courts position is not on the ballot until 2014.)

Editorials: Maryam Rajavi calls upcoming Iranian election as “sham” | NCRI

Mrs. Maryam Rajavi, President-elect of the Iranian Resistance, on Saturday said Iran’s clerical regime is facing an “insoluble crisis” and the ruling theocracy has entered its final phase. “The upcoming presidential election has aggravated a power struggle and this internal crisis is accelerating its downfall,” Mrs. Rajavi said in a speech in an international conference in Paris. Mrs. Rajavi said the upcoming election is a sham since it only will allow candidates to run who support the regime’s violent theocracy.  These individuals have no legitimacy in the eyes of the Iranian people and will be boycotted nationwide.

Editorials: A signal it’s time to change the court | Justin Levitt/The Great Debate (Reuters)

If the Supreme Court strikes Section 5 of the Voting Rights Act, what next? It’s a depressing question, with a depressing answer. That’s because no practical substitute solves the problem that Section 5 solves. Section 5 is special medicine for broken democracies. It demands that the federal government sign off on election changes, in areas where less than half the eligible population was able to vote in 1964, 1968 or 1972. Majority rule is grade-school civics. But in these jurisdictions, a majority of the electors could not cast a valid ballot. That is broken democracy. In these areas, democracy was often broken by design ‑ crafty tactics to lock out the most vulnerable and shifting representational schemes to dilute the influence of the few who were able to sneak through. As a result, Congress enacted Section 5 as a backstop. It does not demand utopia. It asks only that new laws not make things worse. Thankfully, the worst of Jim Crow is gone. But four decades have not wholly healed democracies broken for more than a century.

Editorials: Online voting is too risky | Regina Leader-Post

Edmonton city council would be wise to exercise real caution before introducing Internet voting into the municipal election system. As tempting as it might be to blaze an electronic trail into the local democratic process, the notion of a vote that's only a click away triggers some genuine concerns. Edmonton and several other Alberta municipalities are looking at becoming the first centres in Western Canada to allow Internet votes. City staff have recommended council approve online ballots in advance polls for next fall's municipal election, following what was regarded as a successful mock vote last September that tested such a system with no discernible security breaches. That all-systems-go enthusiasm took a hit last week when a local computer programmer informed council's executive committee that he was able to cast two ballots in the mock election without being detected.

Editorials: We Can’t Stop Fighting for Voting Rights | Austin-Hillery/Roll Call

We have just begun a new year, a new session of Congress and a new term for President Barack Obama. But as we look forward to 2013 and beyond, we cannot forget the lessons learned from the past few years. The 2012 election season saw an abrupt reversal of America’s long tradition of expanding voting access. Voters were alarmed by the fact that more than 41 states had introduced, and in many instances passed, legislation that would make it harder for them to vote. These changes are now well-known — voter ID restrictions, cuts in early voting hours, reduced registration opportunities and executive actions making it harder to restore voting rights. Advocates and experts sounded the alarm — in the media, the courts and elsewhere — to ensure no voter would lose their rights. The result: Far fewer voters were affected by these changes than originally predicted. The voters won. But what now that the 2012 elections are over? Does that mean that the work is done and that problems that were so feared just a few months ago are behind us? On the contrary.

Editorials: Will Justice Kennedy Vote for Voting Rights? | NYTimes.com

Justice Anthony Kennedy regards himself as a teacher. The main role of the Supreme Court, he has said, is to instruct Americans about the Constitution’s fundamental values so they know what it takes to preserve American democracy. In Shelby County v. Holder, which the Supreme Court will hear this month, he is likely to cast the deciding vote between the conservatives and moderate liberals in a critical choice about the essence of democracy — the right to vote. The case presents a clash between America’s national commitment to racial equality and Alabama’s contention that states have“the constitutional prerogative to regulate their own elections.” In other landmark cases, like a 2003 decision recognizing privacy rights and a 2005 case striking down the death penalty for juveniles, Justice Kennedy voted for fairness. In these instances, he was a moralist, concerned about constitutional values yet willing to balance the importance of court precedents against the weight of the most salient facts. That approach should lead him to the fair result in this case, too.

Editorials: The GOP’s bad fixes to the electoral college | The Washington Post

Republicans aren't alone in manipulating election rules or drawing districts to favor their candidates, but lately they’ve been in the vanguard. Their latest proposals, to fiddle with presidential vote-tallying, are particularly egregious. Following through on them not only would damage the GOP’s reputation but also could drain all legitimacy from the electoral college system. Virginia Republicans, thankfully, killed such a reform plan Tuesday. Republicans elsewhere should stay away, too. State-level GOP leaders around the country have been considering ways to split up their states’ electoral college votes, and one idea is to do it according to congressional district maps. A presidential candidate who wins a congressional district, say, would win one electoral college vote.

Editorials: Of 31 countries with compulsory voting, a dozen actually enforce it | thenews.com.pk

Now that the Election Commission has sent a reference to the Law Ministry with new proposals including compulsory voting, following Supreme Court’s order that steps be taken to legally bind all eligible voters in the country to exercise their right of franchise as early as possible and ensure that the winning candidate bags a true majority vote, time is certainly ripe to have a glance at the 31 countries with compulsory voting systems in place. Countries that have compulsory voting systems are Austria, Argentina, Australia, Belgium, Bolivia, Brazil, Chile, Costa Rica, Cyprus, Dominican Republic, Ecuador, Egypt, Fiji, France (senate only), Gabon, Greece, Guatemala, Honduras, Italy, Liechtenstein, Luxembourg, Mexico, Nauru, Paraguay, Peru, Philippines, Singapore, Switzerland (province of Schaffhausen), Thailand, Turkey and Uruguay. A study of the World Fact Book of the American Central Investigation Agency (CIA) and the July 4, 2005 edition of the prestigious British daily “The Guardian” reveals that of the 31 countries with compulsory voting system, around a dozen nations (and Schaffhausen, a province/canton of Switzerland) actually enforce it.

Editorials: If the court strikes Section 5 of Voting Rights Act | Richard Hasen/The Great Debate (Reuters)

We celebrated Martin Luther King Jr.’s birthday last week in the shadow of a fight over the constitutionality of a key provision of the Voting Rights Act. The Supreme Court will soon hear arguments in Shelby County v. Holder, raising the question whether Section 5 of the act, which requires that states and localities with a history of racial discrimination in voting get permission from the federal government before making any changes in election procedures, is now unconstitutional. The smart money is on the court striking down the law as an improper exercise of congressional power, although Justice Anthony Kennedy or another justice could still surprise. If the court strikes Section 5, the big question is: What comes next? Reuters has invited a number of leading academics, who focus on voting rights and election law, to contribute to a forum on this question. In this introductory piece, I sketch out what may happen and what’s at stake. One possibility is that nothing happens after Section 5 falls and minority voters in covered jurisdictions lose their important bargaining chip. Then, expect to see more brazen partisan gerrymanders, cutbacks in early voting and imposition of tougher voting and registration rules in the formerly covered jurisdictions.

Editorials: Republican Redistricting in Virginia: The Three-Fifths Compromise | The Root

GOP leaders in Michigan, Wisconsin and Pennsylvania -- all blue states with Republican governors -- have expressed interest in the electoral changes. But as Bloomberg columnist Albert Hunt writes, "If this sort of political coup had been pulled off earlier, instead of celebrations on the streets of Washington during last week's presidential inauguration, there would have been violent protests." Indeed. And African Americans may well have led the fight. This kind of disenfranchisement isn't new to the black community, and its long, dark history has left too many scars to go unnoticed. Republicans were equally bold in their attempts to undermine minority votes ahead of the 2012 elections. Pennsylvania's House Republican leader Mike Turzai declared that a voter-ID law would "help Mitt Romney win" -- ostensibly by disenfranchising African Americans, college students and the elderly. In Ohio, a senior Republican official fought against extensions to voting hours, writing in an email that such a move would only serve the "urban -- read African-American -- voter turnout machine."

Editorials: A vote cast against online voting | Edmonton Journal

Edmonton city council would be wise to exercise real caution before introducing Internet voting into the municipal election system. As tempting as it might be to blaze an electronic trail into the local democratic process, the notion of a vote that’s only a click away triggers some genuine concerns. City staff have recommended council approve online ballots in advance polls for next fall’s municipal election, following what was regarded as a successful mock vote last September that tested such a system with no discernible security breaches. That all-systems-go enthusiasm took a hit Monday when a local computer programmer informed council’s executive committee that he was able to cast two ballots in the mock election without being detected. Coun. Linda Sloan spoke for many citizens, and not just technophobes, when she expressed severe reservations about the integrity of a cyber-vote. “I’m not 100-per-cent confident in the security of the Internet and never have been, whether it’s my credit card information or my personal address or how I choose to vote,” Sloan said.

Editorials: Why Section 5 survives | Abigail Thernstrom/The Great Debate (Reuters)

“The smart money is on the court striking down [Section 5 of the Voting Rights Act] as an improper exercise of congressional power,” Rick Hasen has warned in his introduction to this forum. That bet is a poor one. The “experts” may well be proven wrong ‑ as they were in 2009 when the Supreme Court found no reason to rush into a constitutional judgment on the constitutionality of pre-clearance. “Our usual practice,” Chief Justice John Roberts said then, “is to avoid the unnecessary resolution of constitutional questions.” And that is just what the court did. Today, however, those worried about the future of the Voting Rights Act nervously point to a remark by the chief justice in a 2006 congressional redistricting case. “It is a sordid business,” Roberts said, “this divvying us up by race.” The remark suggested race-driven maps would not survive another review of Section 5’s constitutionality, and yet the enforcement of the pre-clearance provision has long involved race-conscious districting. To forbid “divvying up” is to insist that the Justice Department and the courts craft very different remedies for electoral discrimination than the familiar ones ‑ though a commitment to those race-based districting plans has long been a civil rights litmus test.

Editorials: Delegate the Voting Rights Act oversight formula | Christopher S. Elmendorf/The Great Debate (Reuters)

If the Supreme Court strikes the pre-clearance provisions (Section 5) of the Voting Rights Act, it will most likely do so because the statute’s “coverage formula” is untethered from evidence of current discrimination against racial minorities. The oversight formula determines which states must receive the federal government’s blessing before making any changes to their election laws. It is based on decades-old evidence of discrimination. When Congress in 2006 extended the pre-clearance provisions for another 25 years, legal scholars warned that the extension would be constitutionally vulnerable ‑ unless Congress updated the formula. But politically this was too hot to handle.

Editorials: The Next Voting Rights Act | Spencer Overton/The Great Debate (Reuters)

Richard Hasen introduces this symposium by asserting the “smart money is on the [U.S. Supreme] court striking down” Section 5 of the Voting Rights Act. But I disagree with his framing. The next Voting Rights Act needs both Section 5 and additional voting rights protections. Unfortunately, Hasen is helping opponents of Section 5. He gives justices allowance to ignore facts and law supporting Section 5, and instead perhaps think: Scholars anticipate our court will invalidate Section 5, so we can invalidate it without seeming too extreme or too political. Section 5, however remains a significant tool in preventing voting discrimination. During the 2012 election, it blocked new hurdles that would have made it harder to vote in Florida, South Carolina and Texas. Hasen himself anticipates more problems if the court invalidates Section 5 – “more brazen partisan gerrymanders, cutbacks in early voting and imposition of tougher voting and registration rules.” Arguments that Section 5 unfairly targets states subject to its jurisdiction are overblown. Areas without a record of recent discrimination can “bail out” of this oversight. Since 1982, no area seeking a bailout has been turned down.

Editorials: Opting into the Voting Rights Act | Heather Gerken/The Great Debate (Reuters)

If the Supreme Court strikes down the Voting Rights Act, many will argue that we should abandon the civil rights model of elections and opt for a national law setting uniform election standards that would protect every voter. I’m all for protecting every voter. But I would hate to lose what Section 5 provides – protections for racial minorities, in particular. The other protections against racial discrimination in voting – most notably, Section 2 of the Voting Rights Act – are too costly and cumbersome to protect racial minorities from the practices that Section 5 now deters. Section 2 works well for high-stakes redistricting battles, where the game is worth the candle. But for the myriad low-level discriminatory practices, no civil rights group has the resources to bring suit every time. We still need what Section 5 provides: a simple, quick and low-cost strategy for protecting minority voters.