Voting rights activists have seized upon a key provision of the Voting Rights Act in an effort to mitigate the damage done by the Supreme Court earlier this month in the case of Shelby County, Alabama v. Attorney General Eric Holder. According to Adam Serwer at MSNBC.com, the state of Texas may still be subject to the federal government’s approval before it can rearrange voting districts or make changes to election law. In its June 25 decision in the case, Chief Justice John Roberts neutered the historic 1965 Voting Rights Act by deeming that the criteria established in the Act for determining racist states was no longer valid. Section 4 of the Act set forth the requirements to establish that a state has a history of racial discrimination in voting. Section 5 mandated that all the states meeting Section 4′s requirements must get clearance from the federal government (known as “preclearance”) before changing election rules. By invalidating Section 4, Roberts and the Court made Section 5 all but unenforceable.
Republicans in Texas acted immediately to implement changes to voting laws and setting new congressional districts in the state that would greatly reduce the electoral impact of traditionally Democratic constituencies like African-Americans, students and Latinos.
However, Travis Crum, now a law clerk for Federal Judge David S. Tatel, anticipated a ruling of the type handed down June 25. Crum called Section 3 the Voting Rights Act’s “secret weapon” in the Yale Law Review in 2010, saying that in the event of a ruling like Shelby, Section 3 could serve as a backup measure for establishing fairness in elections.
Section 3 of the Voting Rights Act, which the Court left intact, stipulates that any jurisdiction with a recent history of racially discriminatory practices shall be subject to the preclearance provisions of Section 5. Section 3 demands a higher standard of proof than Section 4. In Section 4, all that must be established is that changes in election law would have an adverse effect on racial equality in voting access. Section 3 demands that there be proof of the intent to racially discriminate on the part of the legislators seeking to change election laws.