A voting rights battle royal began last month when the Department of Justice sued North Carolina over its restrictive new election law. DOJ alleged that the law, which imposes a photo ID requirement for voting, ends same-day voter registration, and cuts back on early voting, violates Section 2 of the Voting Rights Act. Earlier this summer the DOJ also filed two Section 2 suits against Texas, arguing that its photo ID law and electoral district maps are illegal. Section 2 is the VRA’s core remaining prohibition of racial discrimination in voting. It bans practices that make it more difficult for minority voters to “participate in the political process” and “elect representatives of their choice.” It applies to both redistricting (as in Texas) and voting restrictions (as in North Carolina). And it just became a whole lot more important thanks to the Supreme Court’s June decision in Shelby County v. Holder, which neutered the VRA’s other key provision, Section 5. Section 5 used to bar certain states and cities, mostly in the South, from changing their election laws unless they first received federal approval. To get approval, the jurisdictions had to prove that their changes wouldn’t make minority voters worse off. Now that Section 5 is essentially gone, all eyes are on Section 2.
How effective is Section 2 at protecting minorities’ voting rights compared with Section 5? Surprisingly, there’s not much research out there on this question. To figure out the answer, I analyzed data about all districts in the South and all VRA lawsuits around the country. Here’s the gist of what I found: Section 2 is worse than Section 5 at stopping redistricting that breaks up districts in which minority voters are numerous enough to elect their preferred candidates. But it’s better at blocking voting restrictions than is commonly realized (though not as good as Section 5). My study also suggests ways to amend Section 2 to shore up its weaknesses. The changes I’m proposing, I think, would be less controversial, and more likely to survive a court challenge, than other suggested responses to the Supreme Court’s decision.
At argument last winter, Justice Anthony Kennedy remarked that “it’s not clear to me that there’s that much difference” between Section 2 and Section 5 as to redistricting. It turns out he’s wrong. I found that there are actually dozens of districts in the South (both in Congress and in state legislatures) that Section 5 used to protect, but that states can now eliminate without violating Section 2. That’s because Section 5 used to insulate all districts in which minorities can elect their preferred candidates from any major changes. Section 2, on the other hand, doesn’t apply to districts that are strangely shaped or whose minority populations fall below 50 percent or are too socioeconomically varied. These kinds of districts can now be dismantled with impunity.