The Shelby County decision is definitely a major set-back for proponents of the Voting Rights Act (VRA), but it is important to keep it in perspective. The Court did not invalidate the Voting Rights Act itself. Section 2, which prohibits the denial or abridgement of the right to vote on account of race or color, is still operative. Section 203, which provides for language assistance in elections, is still valid. Indeed, the justices did not even invalidate Section 5—only the coverage criteria set out in Section 4.
The Shelby County case effectively pushed the fate of Section 5 back into the political arena. There will be no federal preclearance until Congress passes new legislation, which is highly unlikely given that Congress is so bitterly polarized it probably could not agree on whether there is ham in a ham sandwich. So, Section 4 awaits a more moderate Congress. When and if that time comes, a new coverage formula would be the result of extensive negotiations and would look quite different from the old formula. In some ways, that could be a positive development for proponents of the VRA. Many recent allegations concerning unfair election practices involve Hispanics and American Indians outside the Old South. A revised Section 4 criteria could expand coverage, especially in the West. A possible alternative approach to a new coverage formula is to base it, not on geography, but on the occurrence of successful Section 2 cases, i.e. a jurisdiction that is successfully sued on a Section 2 claim would then be subjected to federal preclearance for a specified period of time. This connects coverage directly with current discriminatory actions rather than geography or history.
The probability of a new Section 4 passing Congress will depend in part on the fallout from the sudden absence of Section 5 pre-clearance scrutiny. The opponents of Section 5 point out that the South has changed in dramatic ways—that it has abandoned its racist Jim Crow past—and there will be no dramatic increase in efforts to abridge the voting rights of minorities. Their opponents argue that the covered jurisdictions improved their behavior only because they were under the scrutiny of Section 5, and will now revert to unbridled efforts to whittle away at the ability of people of color to elect candidates of their choice. We now have an opportunity to find out which argument is valid.
The next act in this drama belongs to the researchers. If there is dramatic evidence of renewed efforts to limit minority voting, and there is a clear difference between formerly covered jurisdictions and non-covered jurisdictions, it will create a powerful impetus for legislative action. If not, it is difficult to see how a successful congressional majority could be put together for passage of a revised Section 4 based on geography.
In the meantime, victims of voting discrimination still have a potent weapon in Section 2. If questionable changes to election law do indeed follow the removal of federal scrutiny, we will see a dramatic increase in Section 2 cases, which, as Justice Ginsburg pointed out in her dissent, are enormously complicated and expensive. In effect, the implementation of the VRA just got a lot more expensive.
Daniel McCool is Professor of Political Science at the University of Utah, and editor of The Most Fundamental Right: Contrasting Perspective on the Voting Rights Act. Read more about the book in this excerpt.