Voting rights advocates are testing whether a little-used provision of the Voting Rights Act could limit the damage of the Supreme Court ruling that struck down a key part of the landmark civil rights law. Hours after the Supreme Court’s verdict was announced, representatives for the state of Texas celebrated its demise by announcing that they would move ahead with restrictive voting law changes that will disproportionately disenfranchise minorities. Those changes were previously blocked by the Justice Department, through a part of the Voting Rights Act the forces jurisdictions with a history of discrimination in voting to submit their election law changes to Washington in advance, often referred to as “preclearance,” under Section 5. Preclearance prevented discrimination in advance, rather than relying on drawn out litigation that might not be resolved until long after ballots are cast. Section 4 of the Voting Rights Act, which the high court struck down as unconstitutional, determined which jurisdictions were covered by that requirement. But Section 3 of the Voting Rights Act allows the federal government to subject jurisdictions with recent records of deliberate discrimination to the preclearance requirement. With Congress polarized and unlikely to come together to fix Section 4′s coverage formula, Section 3 could become the primary tool for the Justice Department and voting rights activists seeking to patch the gaping hole left by the Supreme Court’s verdict. Travis Crum, now a clerk for federal judge David S. Tatel, laid out this approach in an article for the Yale Law Journal in 2010, anticipating that the Supreme Court would someday strike down part of the Voting Rights Act. Crum called Section 3 the Voting Rights’ Act’s “secret weapon.”
Voting rights advocates are already putting the Section 3 strategy to the test. Last Tuesday, attorneys representing the Texas branches of the NAACP, the Texas Legislative Black Caucus, and Democratic State Senator Wendy Davis in a legal battle with the state over Texas’ redistricting plan asked a federal court to place the entire state of Texas back under preclearance in accordance with Section 3.
“What the court found in the case as a factual matter, their findings were that the congressional map and the senate map were both intentionally discriminatory,” says Gerald Hebert, an attorney with the Campaign Legal Center who represents the groups who filed the request. “That kind of intentional discrimination violates the 14th and 15th amendments.”
That high standard of proof is also part of what limits the effectiveness of Section 3 as a replacement for Section 4. To impose preclearance on a jurisdiction not covered by the now-defunct Section 4 formula, you have to prove that officials intended to discriminate. Under the old formula, all that had to be proven was that the election law changes would have discriminatory effects—precisely because most people are smart enough to hide when they’re deliberately trying to discriminate.