Earlier this summer, the U.S. Supreme Court gutted the most potent provision of the Voting Rights Act: Section 5, which had required nine states and a number of individual counties with long histories of voter discrimination to clear any new election law changes with the feds. In the weeks since the decision, voting rights advocates have been searching for new strategies to protect voting rights. And now, in recent days, a previously ignored portion of the Voting Rights Act has become a key tool in the fight. Advocates—as well as Attorney General Eric Holder—are hoping Section 3 will prove to be a powerful tool in the face of an onslaught of voting restrictions from Republican legislatures—and can at least partially replace the much stronger voter protections the Supreme Court took away.
Since that Supreme Court decision, the states that had been covered by Section 5 have run roughshod over voting rights. Texas has set about implementing a voter ID law—previously nixed by the DOJ under the Section 5—that would require some people to drive 176 miles round trip on a weekday to get the government-issued photo ID they’ll now need to vote. In Florida, Governor Rick Scott has announced he would re-start a purge of non-citizens from the voter rolls. North Carolina, for its part, passed what is likely the most sweeping set of voting restrictions since the original Voting Rights Act was passed.
As anyone will tell you, there’s nothing in the law that’s nearly as protective as Section 5. Section 5 required states with histories of voting discrimination to get clearance from the feds before any changes to elections law could go into effect. The Department of Justice or the D.C. Circuit Court had to ensure that new laws did not intentionally discriminate and that they would not have a discriminatory effect—and the states bore the burden of proof. With Section 5 out of the picture, advocates are looking for whatever they can use to fight discriminatory voting laws. One law professor compared it to setting out to build a house and discovering that your power-tools were gone. Section 3 and other provisions function like hammers and saws—capable tools but not nearly as efficient or effective.
Section 3 does hold some promise. Under its rules, if plaintiffs show that a state or jurisdiction has intentionally discriminated, they can ask the judge to require the state or county to get permission from the feds before new elections laws go into effect. Groups in three states have asked judges to make such a requirement and the Department of Justice has voiced its support. So, while prior to June’s ruling, Section 3 was relatively obscure even among legal experts, it’s now in the spotlight.
The Department of Justice (DOJ) announced it would try to use Section 3 to bring more states back under preclearance. In an ongoing Texas redistricting case, civil rights groups and the DOJ have requested that the court consider requiring Texas to get “bailed in,” meaning it will have to submit to preclearance. A Native American tribal group in Alaska has made the same request after ballots were repeatedly not made available in tribal languages. There’s a case in Montana calling for preclearance as well. And most recently, the plaintiffs bringing a lawsuit against North Carolina’s new voting laws have asked for the state to be bailed in.
Still, Section 3 has only been invoked 18 times in the last four decades. Judges have usually applied it to counties or school districts. Only two states, Arkansas and New Mexico, have ever been “bailed in.” Currently, only three counties in the whole country are required to seek preclearance under Section 3, all of them relatively rural. And almost all of these Section 3 cases have focused on redistricting shenanigans, rather than on the more creative types of voter restrictions we’ve seen recently.
Because of the lack of relevant case law, much about how Section 3 can be made to work remains unknown. Whether Section 3 can become a potent tool for protecting voter rights depends heavily on the answers to these three questions:
1. How easy will it be to invoke Section3?
In order to even consider “bailing in” a jurisdiction, a court must first determine that the jurisdiction intentionally discriminated against minority voters. (In some cases, jurisdictions have submitted to preclearance as part of an agreement, but in the current political climate with so many states fighting, in effect, for their right to discriminate, a mutual agreement is unlikely.)
Proving intentional discrimination has been difficult. “The case has to be pretty egregious,” says Loyal University law professor Justin Levitt, who specializes in redistricting law. “It’s pretty unusual to find intentional discrimination, period.” Section 5 allowed the Department of Justice to nix a law because it had a discriminatory effect; for instance voter ID laws often got denied because they presented more obstacles to black voters than to white voters. Furthermore, the burden of proof fell on the states—they had to explain why their laws weren’t discriminating. But Section 3 shifts the burden to voting rights advocates, who must show that a jurisdiction actually meant to make it disproportionately harder for minorities to vote. Proving such intent often requires smoking guns, like emails or recordings of lawmakers or elections officials specifying their desire to discriminate against minority voters. Most of the time, civil rights lawyers have trouble finding enough evidence, especially because just trying to gain partisan advantage, i.e. to make it harder for Democrats to win, doesn’t by itself count as such discrimination.
However, last year, in a preclearance case, the D.C. District Court found that two of Texas’s three redistricting maps not only had a discriminatory effect but that lawmakers had intentionally tried decrease the weight of black and Latino votes. The maps got rejected, but in the course of the case, a number of damning emails surfaced, including one that discussed the “Optimal Hispanic Republican District”—a district which had a high Hispanic population but a low percent of eligible Hispanic voters. Texas had gotten in similar hot water seven years ago, after Congressman Tom Delay tried to redraw the state’s district maps in 2003. The Supreme Court, ruling on the maps in 2006, judged one of the districts discriminatory. “In essence the State took away the Latinos’ opportunity because Latinos were about to exercise it,” stated the court’s majority opinion.
Because the state was found to have intentionally discriminated last year, and has such a terrible history, Levitt says Texas presents the perfect case for testing the floor of Section 3. He jokes that it’s the reverse of Liza Minnelli’s famous song “New York, New York.” “If you can make the case for discrimination anywhere, you can make it there,” he says of Texas.
Texas’ maps never went into effect, so there’s a chance the courts will throw out any case asking that the state be bailed in because of them. However, there’s still the state’s notoriously restrictive voter ID law, which presents enormous hurdles to voters who don’t already have the required IDs. Levitt expects that law will also provide an opening for a Section 3 case. (The lawsuit has already been filed.)
Even if the courts do decide to force Texas to submit new elections laws for preclearance, that will only show that Section 3 can be applied somewhere. It will still remain unclear whether judges will be strict when it comes to other states. After Texas’s experience, lawmakers in other states have probably been more careful about spelling out their intentions in email or otherwise. Most experts still expect making the case for Section 3 prosecution will be difficult.
“This [Texas] case is going to be a jog and in other cases it’s going to be a marathon,” says Levitt.
2. How broad will the preclearance rules be?
Once a judge has determined that a jurisdiction did indeed intend to discriminate, he or she can then choose to make a preclearance requirement. The judges, however, have tremendous discretion. They can write a narrow requirement—for instance decreeing that a state that’s discriminating in its redistricting maps must have its maps precleared the next time around. Or they can fashion a requirement that resembles Section 5, requiring the state to submit all election law changes to the Department of Justice for the next 50 years.
In the past, most “bailed-in” jurisdictions faced requirements that were fairly narrow and dealt specifically with redistricting cases. But that was when the worst-offending states and counties were already covered under Section 5. When states with long histories of voter discrimination appear in court facing Section 3 issues, judges may be more inclined to require more laws get precleared. They could also require that should such a state start a voter purge or overhaul a voter ID law, such specific changes must undergo preclearance.
There’s already some precedent for such pre-emptive measures. When Arkansas was bailed-in in 1990, the case dealt mostly with redistricting. However, at the time, plaintiffs specifically noted that certain counties were changing elections law to require a majority vote instead of a plurality vote. There was obviously some racist motivation for the changes; as minority populations grew, some parts of the state saw the white vote split and a black candidate win office. Requiring a majority gave the white vote a chance to consolidate under one candidate—and was deemed intentionally discriminatory.
So the judge in the case ruled that any jurisdictions in Arkansas that passed such a law would have to submit it for preclearance. We could see similar requirements going forward. For instance, if North Carolina’s voter ID law were to be deemed intentionally discriminatory, the judge could also rule that the state would have to get any voter purges precleared as well.
3. Will Congress give Section 3 sharper teeth?
Currently, Section 3 is no replacement for Section 5—it’s simply one of the only remaining tools available. Rick Hasen, a law professor at the University of California-Irvine and author of The Voting Wars, summed it up on his blog: “This is a clunky way to cover only a subset of jurisdictions found to be intentionally discriminating—a tough legal standard to prove. And courts have discretion to grant or not grant bail-in, and to fashion the remedy as it sees fit. With lots of the worst racial discrimination in voting taking place on the local level, bail-in is no substitute for the old preclearance regime.”
But a number of legal experts have pointed to the potential for expanding Section 3 to make it more useful for preventing voter discrimination. New York University law professor Richard Pildes has argued that Congress should amend Section 3 to cover jurisdictions that violate the Motor Voter Registration Act and the Help America Vote Act, as well as violations of Section 2 of the Voting Rights Act, which prohibits laws that have a discriminatory effect. As Pildes notes, by expanding Section 3, Congressional Republicans could both undo a bit of the GOP reputation as the party of voter suppression but they wouldn’t have to actually name any states.
Travis Crum, a Yale Law School graduate, wrote a piece in the Yale Law Journal arguing that if Section 3 were broadened, it could actually have some advantages over Section 5. After all, the list of states covered under Section 5 was quite static. Section 3 allows for states to come under preclearance as they pass problematic laws, and would allow local jurisdictions, which often escape lawsuits because of costs, to come under similar scrutiny.