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.
Next, even if the Shelby County plaintiffs lose the challenge to Section 4, there will still be a challenge to the substantive provisions of Section 5 in the 2006 reauthorization. The challenge will resemble the one brought originally by the plaintiffs in Nix v. Holder, the challenge filed by voters in Kinston, North Carolina. It will attack the higher preclearance hurdles in the 2006 reauthorization which has led to objections against voter integrity measures like citizenship verification in Georgia and photo identification requirements in Texas.
Some Republicans in Congress have claimed that the Justice Department is not enforcing Section 5 properly. That’s not accurate. They make this claim because they want their redistricting cake, and to have also eaten it. The insertion of the word “any” into the 2006 reauthorization – namely that “any” discriminatory effect merits an objection – has led the bureaucrats in the Voting Section at DOJ largely to adopt a de minimis standard, where any difference, or delta, greater than zero in discriminatory effect results in an objection.
DOJ is taking the Republican Congress of 2006 at its word, even if some of those Congressmen are protesting that DOJ should not. But if you voted for the reauthorization in 2006, you also voted to make it difficult to preclear photo voter identification and citizenship verification. While members of Congress enjoy their safe racially gerrymandered districts, lawlessness in elections flourishes because election integrity measures are objected to under Section 5.
All of this illustrates the three reasons why the plaintiffs in Shelby County are likely to prevail at the Supreme Court.