Six years ago, to much fanfare, Congress extended the lifespan of the Voting Rights Act’s crucial preclearance provision, Section 5, by twenty-five years. (Section 5 requires covered jurisdictions, mostly in the South, to get permission from the federal government before enacting any new electoral laws.) But Congress didn’t just renew Section 5; it also revised it. Section 5 now bars covered jurisdictions from diminishing minority groups’ “ability to elect” the candidates of their choice. The provision now also forbids these jurisdictions from passing election laws with “any discriminatory purpose.” At the time these amendments were made, their consequences were highly uncertain. No one knew whether minorities would be able to elect more or fewer candidates as a result, or whether Democrats or Republicans would benefit. As Columbia professor Nathaniel Persily wrote in 2007, “there is disagreement about . . . how one determines minorities’ ‘ability to elect,’” and “[t]he potential interpretations of the law run the gamut from entrenching either Republican or Democratic gerrymanders.”
Thanks to a major decision last Tuesday by a three-judge court in Washington, D.C.—the first to carefully examine the new statutory language—we no longer need to speculate about the law’s implications. At least as applied by these judges, the revised Section 5 is extraordinarily favorable to minorities, and almost as beneficial to Democrats. But, ironically, these very attributes may spell doom for the provision when, most likely next year, it reaches the Supreme Court. The three-judge court had to decide whether Texas’s new district plans for Congress, the State House, and the State Senate reduced minorities’ ability to elect their preferred candidates or were enacted with a discriminatory purpose. The court held that the Congressional and House plans undercut minorities’ ability to elect, and that all three plans were improperly motivated. Therefore none of the plans may go into effect, and Texas must go back to the drawing board to come up with valid districts for the rest of the decade.
More remarkable than the court’s holding was its reasoning. The court made at least four striking moves in its analysis of the revised Section 5, three of which are very advantageous for minorities, and one of which is very advantageous for Democrats. First, the court ruled that districts in which minorities are able to elect the candidates of their choice—that is, “ability” districts—include not only majority-minority districts but also “coalition” and “crossover” districts. In coalition districts, different minority groups (such as African Americans and Hispanics) band together to elect their preferred candidates. In crossover districts, members of the white majority cross racial lines to vote for minorities’ candidates of choice. If these sorts of districts are protected by the revised Section 5, then no constituency in which the minority-preferred candidate usually prevails can ever be eliminated.