Voting Rights and Wrongs

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.

When President Johnson signed the Voting Rights Act into law, he is said to have remarked that he was ‘signing away the South for a generation’. By putting the redistricting process in the region back on a level playing field, the Supreme Court may have put an end to the GOP’s takeover of Dixie.