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Strking Down the Voting Rights Act Is Nothing to Fear?

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by Publius
Posted November 20, 2012, 5:32 PM

Eric Posner and Nicholas Stephanopoulos, both law professors at the University of Chicago, write at Slate:

Earlier this month, the Supreme Court agreed to hear the case of Shelby County v. Holder, a challenge by an Alabama county to Section 5 of the Voting Rights Act. Under Section 5, states and counties with a history of discriminatory voting practices are not permitted to change the rules for elections without first persuading the Justice Department (or a court) that their new policies will improve, or at least not harm, minority representation.

The court agreed to hear Shelby County’s challenge just three days after the re-election of President Obama. Many commentators believe the timing is no coincidence. The five conservative justices have already expressed skepticism about laws that give advantages or special consideration to minorities. Having just seen an African-American re-elected as president, they might think the moment is right to strike down a law that is based on the assumption that the South, where Section 5 mostly applies, still discriminates against minority voters more than the rest of the country.

Liberals, among them Slate’s Emily Bazelon, are wringing their hands. They point out, correctly, that President Obama’s re-election does not prove that racism has disappeared, or that Southern states no longer try to disenfranchise minority voters. Don’t widespread state efforts to enforce new photo ID laws prove just the opposite? But these concerns are overstated. A judgment that Section 5 is unconstitutional would have ambiguous, and probably minor, effects on minority representation and electoral outcomes.

One reason for this is that there is another section of the Voting Rights Act that protects minority voters. Under Section 2, parties can challenge discriminatory redistricting plans, photo ID laws, and other efforts to dilute the power of minority voters. The major differences between Section 2 and Section 5 are twofold. First, Section 5 prevents laws from going into effect until the Justice Department says OK (the approval is called “preclearance”), while Section 2 requires voters (or the Justice Department) to challenge a law in court and assume the burden of proof for striking it down. But this difference is relatively minor, at least at the congressional and state levels (as opposed to, say, school boards), because candidates, public interest groups, and the Justice Department have the incentive and the resources to challenge discriminatory voting laws in court.

The second difference is that, in disputes over redistricting, Section 5 protects minorities in districts where they compose less than 50 percent of the population, but can elect their preferred candidates with the help of like-minded white voters. In contrast, Section 2 protects minorities only where they could form a majority in a district by themselves. But this difference doesn’t matter much either, because there aren’t actually many districts that are protected by Section 5 but not by Section 2.

Another reason why Section 5’s downfall might not prove disastrous to minority voters is that, while its potency in combating Jim Crow-style discrimination was undeniable, its benefits in our more sophisticated era are more uncertain. The core of Section 5 is its ban on efforts to reduce the level of minority representation in a state, for example by dispersing minority voters across many white-majority districts so that they are always outvoted (or with new ballot access restrictions). But the provision still permits Republican politicians to pack a large number of minority voters into relatively few districts (just no smaller a number than before), thus preventing minority voters from joining with white Democrats to defeat Republicans in other districts. The upshot is that while the number of minority legislators has increased in many jurisdictions covered by Section 5, so has the number of Republican-dominated state legislatures, and Republican representation in Congress as well. Minorities have gained more seats for themselves in legislatures, but not necessarily more Democratic officeholders to fight for the policies they care about.

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