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.
The fight over these rules will be mostly political, not legal. I do not expect many successful constitutional cases or cases under Section 2 of the Voting Rights Act – a different provision which applies nationwide but is harder for plaintiffs to win.
Another possibility, and one which seems fairly likely, is that negative public reaction to the Supreme Court striking down a crown jewel of the civil rights movement creates a political opening for Congress to enact a new piece of voting rights legislation. The GOP may also be eager to support some kind of legislation to blunt the likely fallout from an adverse action from the Roberts Court.
The choice of post-Shelby County legislation threatens to split the civil rights and election reform community over whether any New Voting Rights Act will be race-based – focused on protecting minority voters in particular – or whether the law will be focused on election reform more broadly, though still in ways that could significantly help minority voters.
A race-based reform could try to impose something like Section 5 nationally, though without the requirement that jurisdictions get permission before changing their voting rules. For example, a New Voting Rights Act could give groups challenging a new voting practice anywhere in the country the opportunity to show that the law makes minority voters worse off. It is unclear, at this point, whether such a race-conscious law would survive Supreme Court review after the Shelby County case and the Fisher affirmative action case.
An election reform-based proposal, in contrast, could set national standards for lines at the polls, ensure access to voting, rein in gerrymandering, create a uniform federal ballot design or address other issues, such as modernizing voter registration. If legislation comes, a new national standard seems inevitable. Even if we need a special law for election disaster zones like Florida and Ohio, it is hard to see the political path for Congress to pick a new set of jurisdictions to be subject to special federal control.
Even non-race based reforms could raise potential constitutional problems. This term the Supreme Court is hearing another case, out of Arizona, which raises questions over how much power Congress has over states to set the rules being used in federal elections. In the Arizona case, the specific question is whether Arizona officials must accept a federal voter registration form that does not include citizenship information required by Arizona law.