Bench Memos

Linda Greenhouse and the Voting Rights Act, Part 2

Continuing from my part 1 post:

Myth 2: Section 5 is critical to stopping states’ discriminatory changes to voting rights laws

Greenhouse points out that Section 5 stopped Texas’s enforcement of “the country’s most stringent voter ID law,” and induced South Carolina to change its proposed voter ID law. The Section operates as a “deterrent to mischief or as negotiating tool to avoid it.” In other words, Greenhouse sees the law as a prophylactic measure, aimed at stopping discriminatory voting rights laws before their implementation, and views Section 5 as the main thing protecting minority voters from stringent voter ID laws.

Greenhouse fails to mention Section 2, however, which both private parties and the DOJ can invoke to stop discriminatory voting changes. Section 2′s ability to combat discriminatory voting laws is very relevant—if it works, Section 5 is unneeded. Unfortunately, for Greenhouse’s argument at least, the evidence suggests that Section 2 can be a very effective tool for combatting discrimination, as Justice Kennedy argued in oral arguments:

But with…a modern understanding of…the dangers of polling place changes, with prospective injunctions, with preliminary injunctions…and with the fact that the Government itself can commence these suits, it’s not clear to me that there’s that much difference in a Section 2 suit now and preclearance.

Accordingly, Greenhouse’s concern that Section 5 is the only thing stopping Texas and South Carolina’s implementation of discriminatory voter laws is farfetched. Under Section 2, if the laws actually were that bad, the DOJ still could have filed for a preliminary injunction, and proven their concerns in Court.

What’s more, it’s important to note that, as Justice Kennedy’s questioning suggested, striking down Section 5 will actually free significant resources up for the DOJ:     

JUSTICE KENNEDY: Can you tell us how many attorneys and how many staff in the Justice Department are involved in the preclearance process? Is it 5 or 15?

            GENERAL VERRILLI: It’s a — it’s a very substantial number and –

            JUSTICE KENNEDY: Well, what does that mean?

            GENERAL VERRILLI: It means I don’t know the exact number, Justice Kennedy.

            JUSTICE SCALIA: Hundreds? Hundreds? Dozens? What?

GENERAL VERRILLI: I think it’s dozens. And so the — and so it — so it’s a substantial number. It is true in theory that those people could be used to bring Section 2 litigation.

This diversion of resources—for a comparatively tiny benefit—is substantial. As the DOJ’s website explains, the DOJ’s Voting Section usually reviews around 14,000-22,000 changes a year, only objecting to around 1% of the changes. And as Chief Justice Roberts pointed out in oral arguments, in 2005, the Attorney General only lodged one objection out of the thousands of changes it reviewed.

What’s more, the dozens of attorneys that the DOJ could divert from Section 5 enforcement to Section 2 litigation could wind up policing voting discrimination more effectively. The DOJ could use all of its resources actively prosecuting discriminatory laws across the country, instead of wasting time policing every voting change—no matter how trivial—in a narrow band of locales.

I certainly have reason to doubt the DOJ’s capacity, under Eric Holder, to prosecute Section 2 appropriately—there are numerous examples of the DOJ abusing its discretion elsewhere, manufacturing a legal regime that it wishes existed, instead of enforcing the one that actually existed. However, for constitutional purposes, that question is irrelevant. What’s more, striking down Section 5 at least stands a chance of at least somewhat reining in the DOJ, preventing it from imposing a different regime upon “covered” states than uncovered states.  Using Section 2, the DOJ would have to justify its concerns in Court, instead of imposing its own standards for granting preclearance to a state’s voting laws.

Myth 3: The Supreme Court’s evisceration of the Voting Rights Act will be a historic mistake

According to Greenhouse, “except for a few wishful thinkers, everyone who… [followed the Voting Rights Act oral argument] now expects the court to eviscerate the Voting Rights Act – and seriously harm itself in the process.” (emphasis mine.)  She predicted that the opinion would be “an error of historic proportions” and that the Court would eventually find its own decision to be bewildering. Here again, Greenhouse is very misguided.

It is not entirely clear that the Court is set to strike down all aspects of Section 5. The Court could merely strike down formula for determining which jurisdictions must receive preclearance, instructing Congress to construct an accurate eligibility formula (although Congress’s record of heeding the Court’s concerns is dismal until now). Furthermore, during oral arguments, Justice Kennedy seemed be more favorable to another aspect of the current preclearance regime, asking twice about a provision under Section 3 of the Voting Rights Act. Under Section 3, the DOJ could ask a court to approve bailing-in particular states, forcing them to submit their voting changes to a preclearance regime even though they would not be covered by the 1965 or 1975 formulas. Justice Kennedy presumably might see this solution as a way to maintain a more accurate preclearance regime for the worst offenders, without subjecting less problematic states to the same regime, based upon decades-old statistics.

But, even if the Court did strike down Section 5 in its entirety, it should be clear by now that if that happens, it will not be the monumental blow to civil rights that Greenhouse would have you believe. Instead, the Court would be striking down an increasingly outdated provision that has little practical utility, in a move unlikely to have any real effect on civil rights. That would hardly be an evisceration of the Voting Rights Act, and should not offer any occasion to damage the Court’s reputation.


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