On Tuesday, the Supreme Court handed down
its decision in Shelby County v. Holder,
in which a 5-4 majority comprising the usual suspects effectively neutered Section 5 of the
Voting Rights Act.
Enacted in 1965, Section 5 requires certain
jurisdictions (including Texas, the Deep South, Alaska, Arizona, and three New
York boroughs) to obtain ‘preclearance’ from the Justice Department or federal
judges in D.C. before making any changes to election law; such proposed changes
have been vetoed 2400
times in the last four redistricting cycles. While the Court’s ruling
didn’t strike down Section 5, it nullified another section of the law,
rendering Section 5 void until Congress passes fresh legislation determining
which jurisdictions will be covered, legislation which most observers consider
unlikely to pass at all for some time.
The case originated from a 2008 municipal
election in the city of Caldera, Alabama, held using district lines not precleared
by the Justice Department, and which resulted in the city’s only black
councilman losing his seat. Backed by the conservative Project for Fair
Representation (the same group behind the recent challenge
to the University of Texas’ affirmative action policies), the county, which has
had 200 proposed voting changes rejected, sued to extricate itself from the
provisions of the Act.
In gutting the Act, the GOP-appointed
Justices and the conservative activists pushing the case may have done the
Democratic Party a huge favour.
The best-known consequence of Section 5,
and the one at issue in the case, is the creation of majority-minority
districts. In the early 1990s, the (First) Bush Administration consciously used
the preclearance power to its partisan advantage by disapproving congressional
district maps lacking the requisite proportion of black-majority seats. The
creation of such heavily Democratic (and often oddly-shaped)
districts meant that surrounding districts were purged of African-American
voters.
When elections were held using the new
maps, the Congressional Black Caucus (and its Hispanic counterpart) saw its
numbers swell, but the dramatic reduction of southern seats winnable by white
Democrats helped the GOP sweep to majority status in the region and the nation
in 1994. Today, Democrats hold 40 House seats in the eleven Confederate states,
down from 67 in 1991, and similar reductions were seen at state and local level.
With the Republicans benefiting from it, and the Democrats unable to risk the
seats of minority congresspeople and legislators by challenging it, racial
gerrymandering has become entrenched, and ensures that the redistricting
process in most of the South is structurally biased in favour of the GOP.
As long as Section 5 remains inoperative,
legislatures can still be forced to create majority-minority districts, but
through a more time-consuming legal process. Democratic legislators in states
covered by the Act can use their influence to draw districts favourable to
their party, without being forced to pack super-majorities of Democrats into
majority-minority districts. Without the preclearance weapon, a Republican Attorney-General
appointed in 2020 won’t be able to shape the new decade’s congressional maps in
the way his predecessors did.
Much of the media coverage surrounding the
ruling has focused on the potential for states to enact a new wave of voter ID
laws. This focus ignores the facts that the vast majority of preclearance
decisions under Section 5 concern redistricting rather than laws on voter
registration and identification, and that last year’s push by Republican
legislators to suppress voter turnout was concentrated in presidential swing
states mostly outside Section 5’s reach.
