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After the U.S. Supreme Court’s landmark 2013 decision in Shelby County v. Holder, Democrats have increasingly turned to another part of the Voting Rights Act, Section 2, to challenge what they see as restrictive voting requirements.
Despite recent victories under that provision, election law litigator Paul M. Smith questioned its validity in a “post-Kennedy” world. Smith, of the Campaign Legal Center, Washington, was referring to the speculation that swing-Justice Anthony M. Kennedy might retire in coming years.
Section 2 isn’t likely to fall in the near future, William S. Consovoy, of Consovoy McCarthy Park PLLC, Washington, said. But if Democrats use Section 2 to aggressively attack state laws, it could put the provision at risk.
Smith, who frequently represents Democrats and minorities in voting right challenges, and Consovoy, frequently on the other side, were speaking on a voting rights panel at the annual convention of the progressive American Constitution Society in Washington June 9.
Prior to 2013, certain jurisdictions were required to “preclear” voting changes with either the Justice Department or a federal court. Under that preclearance regime, changes that weren’t pre-approved couldn’t go into effect.
But in Shelby County, the Supreme court struck down the “coverage formula” that determined which jurisdictions were subject to preclearance.
That coverage formula was “irrational” because it was based on whether states discriminated against minority voters in 1965, Consovoy said. Because of that historical perspective, some now-problematic jurisdictions, like Wisconsin, weren’t covered by the preclearance requirement, while some now-non-problematic jurisdictions, like Michigan, were, he explained.
After that decision, minorities and Democrats have had to challenge voting restrictions after they’ve gone into effect. They are doing so under Section 2, which prohibits abridging the right to vote based on “race or color.”
Democrat and minorities have had success lately under Section 2.
For example, several of North Carolina’s voting restrictions, including a voter identification law, were struck down under Section 2 in 2016 by the U.S. Court of Appeals for the Fourth Circuit.
North Carolina intentionally discriminated against black voters by passing a law that targeted them with “surgical precision,” the Fourth Circuit said.
The Supreme Court refused to take a look at that case, but Chief Justice John G. Roberts Jr. suggested that that may have been because of a procedural defect.
Still, Consovoy said that all of the Supreme Court justices are willing to strike down voting laws that they believe are intentionally discriminatory. He pointed to one of the Supreme Court’s most conservative justices, Clarence Thomas, who recently voted to strike down North Carolina voting districts because they intentionally disadvantage black voters.
But Section 2 also allows a court to strike down voting laws that result in discriminatory treatment, even if that wasn’t the state’s intent.
There are likely some justices that have more difficulty with courts striking down state laws based on that rationale, Consovoy said.
Moreover, aggressive use of Section 2 could lead to more concern over its conformity with federalism, he said.
For example, he said challenges to early voting changes presented some of the “weakest” claims under Section 2. It’s hard to see why some states like New York can provide no early voting at all, but other states, like Florida, can’t reduce the number of early voting days from 14 to seven.
Democrats and minorities are only turning to Section 2 because of Shelby County, Marcia Johnson-Blanco, of the Voting Rights Project, Lawyers’ Committee for Civil Rights Under Law, Washington, said at the panel discussion. The Voting Rights Project brought a suit challenging Florida’s early voting claw backs under Section 5.
Johnson-Blanco noted that the North Carolina legislature announced its intention to enact the law later found to be intentionally discriminatory the day after the Supreme Court’s Shelby County decision.
Still, civil rights groups should consider other avenues for challenging restrictive voting laws besides Section 2 of the VRA, civil rights attorney Anita Earls, of the Southern Coalition for Social Justice, Durham, N.C., said.
For example, the National Voter Registration Act can be used to challenge “voter purges"—when states remove voters from the voter rolls, Earls said. That act enumerates mechanisms that states are required to have in place for voter registration and voter purges, she said.
Additionally, Democrats and minorities should look to state laws and state courts to provide protections, Earls said. That’s will be especially true if President Donald Trump gets to appoint more justices to the Supreme Court, she suggested.
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