WASHINGTON – It has been more than a year since the Supreme Court invalidated a key section of the 1975 Voting Rights Act, which civil liberties groups argue has left them with fewer tools to fight voting discrimination.
The court’s decision in Shelby v. Holder invalidated the coverage formula of Section 4, which determined the jurisdictions that had to submit any election law changes to the federal government for approval before they went into effect.
Section 5 mandates that covered jurisdictions meet a so-called preclearance requirement. The court, however, left in place the preclearance mechanism itself, leaving Congress to design a new coverage formula in order to restore the protections under Section 5.
Chief Justice John Roberts provided two guideposts for Congress: The legislation would have to respect the equal sovereignty of the state and it would have to capture recent instances of voter discrimination.
“What we’re left with is not adequate to protect voting rights,” Deborah Vagins, senior legislative counsel at the American Civil Liberties Union, said at a recent briefing in the U.S. Capitol. “Section 5 had some incredibly useful tools that we don’t have anymore.”
Vagins said Section 5 provides several valuable elements to combat discrimination in voting.
First, Section 5 requires jurisdictions included in the coverage formula to submit all proposed election procedural changes to the federal government before implementation.
“What Section 5 really stopped was thousands of last-minute changes, polling place changes, precinct changes at the local level,” Vagins said. “We have now lost the ability to get notice about those and the onus is now on…constituents to find out about these changes.”
Second, Section 5’s preclearance mechanism “freezes” voting changes before enactment.
Vagins said no other part of the Voting Rights Act can “stop discrimination before it occurs.”
Third, Section 5 places the burden of proof on the jurisdiction requesting the election change to show that the change does not have a negative impact on minority voters. Now, the burden of proof is on the voter, she said. Fourth, Section 5 targets ongoing discrimination in a relatively low-cost administrative process that avoids long case-by-case legal battles associated with Section 2.
Congress introduced bicameral legislation in January to update and modernize the Voting Rights Act.
The Voting Rights Amendment Act of 2014 would mandate federal preclearance for states with documented voting rights violations in the previous 15 years. If passed, four states would fall under federal oversight for their voting laws: Georgia, Texas, Mississippi, and Louisiana.
The legislation includes a “rolling” preclearance mechanism that keeps the coverage designations continuously updated through an annual re-evaluation.
The bill would require public notice of any voting changes that differ from those that were in effect 180 days before an election.
The legislation would make it easier to seek a preliminary injunction against a potentially discriminatory voting law. Plaintiffs would only have to show that the hardship to them outweighs the hardship to the state if a law is blocked in court pending a full trial.