When the U.S. Supreme Court struck down a key part of the Voting Rights Act last June, justices left it to Congress to decide how to fix the law. But while Congress deliberates, activists are turning again to the courts: At least 10 lawsuits have the potential to bring states and some local jurisdictions back under federal oversight – essentially doing an end-run around the Supreme Court’s ruling. A quick refresher: The Voting Rights Act outlaws racial discrimination against voters. But the law’s real strength comes from its “preclearance” provision, which forces jurisdictions with a history of racial discrimination to submit new voting measures to the federal government for approval. In last summer’s Shelby County v. Holder ruling, the Supreme Court threw out the part of the law that spelled out when states were automatically subject to federal oversight. States that have been released from preclearance have already passed a rash of new restrictive voting measures, as ProPublica reported earlier. Enter the lawsuits, which hinge on a different part of the Voting Rights Act, the so-called “bail-in” provision. It lets federal courts impose preclearance if a state or local jurisdiction violates the Constitution’s 14th or 15th amendments, which guarantee equal protection and the right to vote.
While the “bail-in” provision has emerged as the new tool of choice for voting rights activists, it is not as sweeping a remedy as the oversight authority the Supreme Court dismantled.
Before the ruling, states, counties and other jurisdictions that were subject to preclearance had to get every single voting change approved – whether they wanted to require a photo ID to vote, change voting hours on Election Day or move even a single polling place.
Under “bail-in,” the court can tailor oversight to the situation. A state that enacts an unfair redistricting map, for example, may only need to submit its next map for federal approval.