Editorials: The More Things Change … | Linda Greenhouse/NYTimes.com

Despite spending a lot of time reading and thinking about the Voting Rights Act case the Supreme Court will hear next week, there’s a puzzle I’m still trying to crack: How can it be that one of the crowning achievements of the civil rights movement, a provision upheld on four previous occasions by the Supreme Court and re-enacted in 2006 by overwhelming bipartisan majorities in Congress (98-0 in the Senate, 390-33 in the House), a law that President George W. Bush urged the justices to uphold again four years ago in one of his final acts in office, a law that has demonstrably defeated myriad efforts both flagrant and subtle to suppress or dilute the African-American vote, is now hanging by a thread? Of the hanging-by-a-thread part, there’s little doubt. Four years ago, in Northwest Austin Municipal Utility District No. One v. Holder, a case commonly referred to as Namudno, the Supreme Court came within a hair’s breadth of declaring the Voting Rights Act’s Section 5 unconstitutional. “Things have changed in the South,” Chief Justice John G. Roberts Jr. declared in the court’s opinion, an oft-quoted line of pithy constitutional analysis that took its place with the chief justice’s other profound musings on race in America. (The others, so far, are “It is a sordid business, this divvying us up by race,” dissenting in 2006 from a decision awarding a rare victory to Latino plaintiffs who had sued to invalidate a Texas congressional district; and “The way to end racial discrimination is to stop discriminating by race,” in a 2007 plurality opinion striking down integration-preserving efforts by public school districts in Louisville, Ky., and Seattle.)

National: Decades later, attorney tracks new challenge to Voting Rights Act | The Advertiser

It was a battle that attorney Armand Derfner thought he had helped win almost five decades ago. In 1968, Derfner represented black Mississippi voters before the Supreme Court in one of the first constitutional tests of a key Voting Rights Act provision. Derfner and a team of civil rights lawyers prevailed, expanding the provision’s scope and keeping the protection in place. Today, Derfner, 74, is watching the Voting Rights Act confront a new challenge — on the same issue he argued 45 years ago.

Florida: Supreme Court to weigh constitutionality of voting rights protection | Tallahassee Democrat

Iron-fisted enforcement of the 1965 Voting Rights Act transformed American politics, especially in the South, by making sure minorities had a clear path to the ballot box and an equal shot at public service. Forty-eight years later, after the re-election of an African-American president, the heart of that law is on trial. The Supreme Court will hear oral arguments Feb. 27 in a case that is sure to ignite a national debate over how far the country has progressed on racial issues and whether minority voters still need extra protection. Shelby County, Ala., opposed by the Justice Department and civil rights groups, wants two key sections of the Voting Rights Act declared unconstitutional. Section 5 bars election officials in jurisdictions with a history of discrimination from changing their voting procedures unless they first prove the changes won’t hurt minorities. Section 4b uses a formula to determine which states, counties and municipalities are subject to Section 5. Though they are not challenging the law, five Florida counties — Collier, Hardee, Hendry, Hillsborough and Monroe — are covered by the Voting Rights Act.

National: Supreme Court to Hear Alabama County’s Challenge to Voting Rights Act | NYTimes.com

Jerome Gray, a 74-year-old black man, has voted in every election since 1974 in this verdant little outpost of some 4,000 people halfway between Mobile and Montgomery. Casting a ballot, he said, is a way to honor the legacy of the Voting Rights Act of 1965, a civil rights landmark born from a bloody confrontation 70 miles north of here, in Selma. The franchise remains fragile in Evergreen, Mr. Gray said. Last summer, he was kicked off the voting rolls by a clerk who had improperly culled the list based on utility records. A three-judge federal court in Mobile barred the city from using the new voting list, invoking Section 5 of the Voting Rights Act, which requires many state and local governments, mostly in the South, to obtain permission from the Justice Department or from a federal court in Washington before making changes that affect voting. That provision is also at the heart of one of the marquee cases of the Supreme Court’s term, Shelby County v. Holder, No. 12-96, which will be argued on Feb. 27. It was brought by Shelby County, near Birmingham, and it contends that the provision has outlived its purpose of protecting minority voters in an era when a black man has been re-elected to the presidency.

Editorials: The strong case for keeping Section 5 | Morgan Kousser/The Great Debate (Reuters)

There are deep ironies in the current case against Section 5 of the Voting Rights Act. Before a 5-4 Republican majority of the Supreme Court opens the door to stronger voter suppression laws by overturning it in Shelby County v. Holder, the justices ‑ and the informed public ‑ should consider how effective Section 5 has been. Highly unusual political conditions made the act’s passage and renewals possible, and there would be almost insuperable difficulty in replacing it now that those conditions have changed. Since 2009, I have been compiling a comprehensive list of voting rights incidents. (I have also served as an expert witness in such voting rights cases as those challenging the 2011 Texas redistricting laws.) The list now has 4,141 incidents: legal cases brought under Section 2 of the Voting Rights Act; legal cases brought under Section 5 of the act; objections by the Justice Department under Section 5 and “more information requests” issued by the department as part of the Section 5 process, if they resulted in pro-minority changes in election laws; and 14th Amendment cases.

Editorials: Shelby County v. Holder: Why Section 2 matters | Ellen D. Katz/SCOTUSblog

Four years ago, when the Supreme Court last considered the constitutionality of Section 5 of the Voting Rights Act (VRA), Justice Kennedy questioned why “[t]he sovereignty of Alabama is less than the sovereign dignity of Michigan,” and why the government of one is “to be trusted less” than the government of the other. Should the Justices now strike down the statute, as many think they are poised to do, the reason why will likely be their belief that places like Alabama are no longer any different from places like Michigan –  or, better yet, Ohio, where Section 5 is wholly inapplicable. Voters may confront difficulties in Alabama, the Justices would posit, but these difficulties appear no worse than those faced by voters in those states left unregulated by Section 5. Therefore, Section 5 must be invalid.  Q.E.D. Sounds plausible perhaps, but take a closer look. As an initial matter, it is not at all clear that the Court needs to compare covered and non-covered jurisdictions in order to assess the constitutionality of the VRA. The issue presented in Shelby County v. Holder is not whether the Justices think Alabama is worse than Ohio, or even whether Congress might permissibly conclude that it is. Instead, Shelby County presents a different question: whether Congress has the power to extend a remedial regime that everyone agrees it lawfully adopted based on its conclusion that the regime continues to do critical work in the places where it operates. That conclusion should not be suspect, much less invalid, simply because problems have since developed in other jurisdictions that Congress might also appropriately regulate.

Texas: Redistricting appeal likely on hold at Supreme Court | San Antonio Express-News

A decision by the U.S. Supreme Court on whether to hear Texas’ appeal in a redistricting case is likely to be delayed until the justices rule on a different voting rights case, lawyers involved in the Texas battle said Friday. Supreme Court justices have held a series of screening conferences to select the cases to be argued during the spring term. So far, justices haven’t selected the Texas appeal of a federal court ruling that the state discriminated against minorities with new redistricting maps for Congress and the Legislature. Texas, in its appeal, also has challenged the constitutionality of Section 5 of the Voting Rights Act that requires prior approval by the Justice Department of any changes to voting laws and procedures for jurisdictions with a history of discrimination.

Editorials: Voting Rights Act section is partisan political issue | The Greenville News

The Supreme Court is said to be close to a decision on the future of one provision of the Voting Rights Act that could simplify elections, speed up the unreasonably long process of redistricting, and reduce government expense in nine state’s where the provision is applied – including Mississippi. Adopted by Congress during the height of the American civil rights struggle, Section 5 of the 1965 Voting Rights Act identified states and localities with a history of race-based voter discrimination and mandated that those “covered jurisdictions” must obtain federal approval or “preclearance” from the U.S. Justice Department before making changes to any state or local voting laws or districts. Without question, at the time Section 5 was adopted in 1965, Mississippi’s track record on civil rights in general and voting rights in particular was nothing short of abysmal and shameful. But that was almost a half-century ago and times have changed in Mississippi.

Editorials: Shelby County v. Holder: Voting discrimination remains concentrated in covered states | Spencer Overton/SCOTUSblog

The Supreme Court is poised to decide the fate of the Voting Rights Act’s preclearance process – one of our nation’s most powerful tools in combating discrimination.  The Court should not second-guess Congress’s determination that voting discrimination remains concentrated in covered jurisdictions, and should uphold the law. Section 5 of the Voting Rights Act requires that covered jurisdictions (nine states plus parts of seven others) “preclear” their proposed election law changes with federal officials. Shelby County, Alabama, argues that preclearance is no longer warranted in covered jurisdictions because increases in minority voters and elected officials show discrimination has waned.  Shelby County also contends that the voting discrimination that still does exist is no longer concentrated in covered jurisdictions, and that a coverage formula based on election data from 1964, 1968, and 1972 presidential elections is obsolete.

Editorials: Shelby County v. Holder: Latino voters need Section 5 today more than ever | Nina Perales/SCOTUSblog

In the 2012 general election, an estimated ten percent of votes were cast by Latinos. The record high number was accompanied by media commentary expressing surprise at the strength of the Latino vote.   Of course Latino voters did not “awaken” last year.  In the slow and steady march towards increased political participation, Latinos have fought to overcome laws aimed at preventing them from voting and reducing the strength of their vote. Throughout this process, Section 5 has played a central role in protecting Latino voters from the backsliding and gamesmanship that characterize the voting laws of many jurisdictions in which Latinos live.   The decision this Term in Shelby County, Alabama v. Holder will be critical to the ability of the growing Latino electorate to participate on an “equal basis in the government under which they live.”

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: 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: 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.”

National: Voting Rights Act at Risk? | Congressional Quarterly

Frank “Butch” Ellis Jr. was sitting in his law office a half-hour’s drive from Birmingham, Ala., about three years ago when Edward Blum, an investment banker turned conservative legal activist, called him to discuss the Voting Rights Act. Although the two had never met, they quickly bonded over a common grievance. Blum specifically wanted to discuss a provision in the landmark civil rights law requiring localities with a history of racial discrimination to obtain U.S. Justice Department permission to make any changes to their election procedures. Ellis, during nearly a half-century practicing law in Shelby County, had watched municipal clients jump through procedural hoops to gain “preclearance” from Washington lawyers. Moving a polling place could take months, for example, and require a voluminous paper trail. When Blum suggested that Shelby County officials, with Blum’s financial support, someday might challenge the provision in court, Ellis agreed. “We knew the only way to attack it was in the courts, in Washington,” Ellis explained recently. “We had the desire to do it, we just couldn’t spend our taxpayers’ money on it.”

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.

National: On Voting Rights, Justices Get an Earful From Their ‘Friends’ | Andrew Cohen/The Atlantic

In a little more than three weeks, the justices of the United States Supreme Court will hear oral argument in a case about the constitutionality of the Voting Rights Act, the venerated federal law that for the past 48 years has helped eased the sting of official discrimination in the exercise of the most important of all civil rights — the right to vote. It’s the Voting Rights Act that has stopped bigoted state and local officials from ginning up new literacy tests or poll taxes. It’s the Voting Rights Act that has forced cynical legislators to limit (somewhat, anyway limit the scope of their racial gerrymandering. In Shelby County v. Holder, the court has been asked by an aggrieved Alabama county to strike down Section 5 of the statute, the provision which requires certain jurisdictions (like those in Alabama) with long patterns and practices of discrimination in voting to “pre-clear” with the Justice Department their proposed changes to voting laws. It’s a vitally important case for many reasons — not least of which that the court’s conservatives appear poised to strike down the statute just months after it was invoked, successfully and often, in the 2012 election cycle to protect the vote for millions of Americans.

National: Scholars urge Supreme Court to keep Voting Rights Act provisions ensuring equal access | UW Today

Racial discrimination and prejudice remain prevalent in the United States, so the U.S. Supreme Court should fully uphold the Voting Rights Act, complete with rules requiring certain areas, mostly southern states, to get federal approval before changing voting laws. That’s the opinion of a consortium of political science and law scholars from the University of Washington and several other institutions who have filed an amicus curiae, or “friend of the court,” brief in the Supreme Court case about voting rights out of Shelby County, Ala. The UW faculty are political science professors Matt Barreto and Luis Fraga. The Supreme Court is expected to review the case on Feb. 27. At issue is Section 5 of the act, which forbids any change in voting law in the selected areas unless the federal government agrees the change “does not deny or abridge the right to vote on account of race, color, or membership in a language minority group.” The rule pertains to the states Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, and certain jurisdictions in California, Florida, New York, North Carolina, South Dakota, Michigan and New Hampshire.

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: 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: 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: 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: 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.

Virginia: GOP’s electoral vote scheme likely illegal in Virginia | MSNBC

A scheme under consideration in Virginia to rig the Electoral College in Republicans’ favor could well violate a key provision of the Voting Rights Act, experts on the law say. But that very provision is itself under challenge by the GOP, and could be struck down by the Supreme Court later this year. A Republican bill that would allocate Virginia’s electoral votes based on the popular vote in each congressional district cleared its first hurdle in the state legislature Wednesday. Had the bill been in effect in the last election, Mitt Romney would have won 9 of Virginia’s 13 electoral votes, despite losing the popular vote in the state to President Obama by nearly 5 percentage points. Republicans have raised versions of the idea in several other blue states where they currently have state-level control, including Wisconsin, Ohio, Michigan, and Pennsylvania. If all four states approved the plan, future GOP presidential candidates would get a major—and anti-democratic—leg up.