What the Voting Rights Act Argument Was Really About
By Bryan P. Tyson
Attorney, Strickland Brockington Lewis LLP
If you only listen to the coverage and editorials surrounding Wednesday’s argument on the constitutionality of the Voting Rights Act, you probably assume that the bedrock of our democratic institutions is under assault. Dire predictions about the entire Voting Rights Act being in danger are emphasized by its very name—how could the Supreme Court hate voting rights?
But reality is a far cry from the frightening picture that has been painted. The key issue in Shelby County v. Holder is whether, when Congress renewed one part of the Voting Rights Act in 2006 – that had always been meant to be an emergency, temporary provision – it had a good enough reason to continue singling out some states over others. Georgia and not Tennessee. Texas and not Arkansas.
Section 5 of the Voting Rights Act is an emergency provision first enacted in 1965 that subjects nine states and parts of seven others to special review by the federal government of every single change the state makes that “affects voting.” That means if a county in Georgia wants to move a precinct from building that has been demolished to a building across the street, the county has to get the approval of the federal government to do that. A county just across the border in Tennessee does not have to do the same.
How are the covered states chosen? In Georgia’s case, the state is covered because it qualified under the formula Congress used when enacting Section 5 as an emergency five-year remedy in 1965: (1) on November 1, 1964, the state maintained a "test or device," restricting the opportunity to register and vote and (2) less than 50% of the voting age population was registered to vote on November 1, 1964 or that less than 50% the voting age population actually voted in the November 1964 presidential election. While the formula was updated to include the 1968 and 1972 elections in some renewals of Section 5, it has never been updated since 1972. (For reference, 1972 was also the year when the song “American Pie” reached number one on the charts.)
If the Supreme Court ultimately strikes down this one provision of the Voting Rights Act, the most likely basis is that Congress cannot use a formula that was last updated in 1972 to keep treating states like Georgia differently than states like Tennessee. Of course, Congress could always immediately reinstitute Section 5 by creating a new formula that is based on elections more recent than the one between Richard Nixon and George McGovern.
But let’s assume Congress will not or cannot agree to create a new formula. Is our democratic form of government truly in danger? Hardly. There exist voting protections that can and are used to address discrimination in voting: claims under Section 2, as well as state and federal constitutional claims. In addition, jurisdictions could still be subjected to the preclearance regime of Section 5 if they are ordered into coverage by a federal court under Section 3 of the Voting Rights Act, as has happened to some jurisdictions.
But what about those jurisdictions that would no longer be required to seek advance federal approval of every election change? Would their voters’ rights still be protected? Two examples show us that if Section 5 of the Voting Rights Act is invalidated, voting rights are still most definitely protected.
First, although some claim that it was Section 5 that mandated changes to Georgia’s law regarding voter ID law, that simply is not the case. Georgia’s statute requiring photo identification for voting was originally passed in 2005. Under the original version, a voter could have had to pay for a birth certificate in order to get a photo ID. A group of individuals and organizations sued, claiming the law violated the 24th Amendment, which prohibits a poll tax and claiming a violation of Section 2 of the Voting Rights Act. They won a preliminary injunction to stop the 2005 law on their 24th Amendment claim—not under the Voting Rights Act. The law had been precleared under Section 5, so preclearance didn’t have anything to do with that case, and the court dismissed the plaintiffs’ Section 2 claim.
Another example sometimes cited to support the need for Section 5 involves Pennsylvania’s photo identification law, passed in 2012. After opponents of the law sued, a federal court stopped the implementation of that photo identification law for the 2012 election on various grounds but the preclearance provisions of the Voting Rights Act had nothing to do with the case—because Section 5 doesn’t apply to Pennsylvania.
So what happens if the Supreme Court finds that the formula should have been updated by Congress? Not much. Voters can still sue governments that enact allegedly discriminatory practices and get preliminary injunctions. The examples often cited of “secondary discrimination” have been remedied without preclearance protections in Georgia, Pennsylvania, and many other states with recent problems that are not covered by Section 5.
The Voting Rights Act has a long and storied heritage. It stamped out government discrimination against the voting rights of minorities at a perilous time in our nation’s history. But voting discrimination will not magically reappear if the Supreme Court finds Congress should have updated the formula in 2006 to a more modern test. The other parts of the Voting Rights Act that remain unaffected, the Constitution, and vigilant courts protect voters today – everywhere in the country.
Bryan Tyson is an attorney with Strickland Brockington Lewis LLP in Atlanta. He specializes in election law and campaign finance issues, including Voting Rights Act litigation, and served as a policy aide on Capitol Hill during the renewal of the Voting Rights Act in 2006.