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.
Unpublished, as well as published, cases are included in the statistics below only if they resulted in changes in the election laws that helped minorities. Some are recorded in printed opinions, but many resulted in informal or court-approved settlements. In other instances, merely filing a lawsuit led to the changes in election laws that minority plaintiffs sought. This is a far larger number of incidents than in any database referred to in the Shelby County briefs.
What do these numbers reveal about the central issue that the Supreme Court asked the parties in Shelby County to address: the adequacy of the Section 5 coverage scheme. Section 5 mandates that certain states, counties or townships are barred from changing election laws without the approval of the Justice Department or the District Court of the District of Columbia.
First, 90 percent of the 4,141 incidents and 93.4 percent of the 3,775 “successful” incidents – those that resulted in changes to election law that advanced minorities’ voting rights – took place in the jurisdictions covered by Section 5. This may not be surprising, since 2,368 of the incidents were Section 5 objections or enforcement actions, or “more information” requests. These, by definition, can take place only in covered jurisdictions.
More instructive is the portion of the 1,256 successful Section 2 cases that arose in jurisdictions subject to oversight: 83.3 percent. Section 2 cases can be filed anywhere in the country. The number of successful Section 2 cases is far larger than that in the much-cited database compiled by Ellen Katz, a law professor at of the University of Michigan (which is subsumed in my list), and the proportion from covered jurisdictions is considerably higher than Katz found in published cases. This is because I included many unpublished cases that resulted in settlements, either in-court or out-of-court.
In other words, five-sixths or more of the cases of proven election discrimination from 1957 through 2013 have taken place in jurisdictions subject to Section 5 oversight ‑ which would mean very skillful targeting for any government program.
Full Article: The strong case for keeping Section 5 | The Great Debate.