Earlier this week, the Supreme Court struck down Section 4 of the Voting Rights Act, which specifies states and districts in the U.S. that must have changes in their voting or districting laws pre-cleared by the federal government.
Section 4 specifically targets states with histories of voting discrimination – most of the jurisdictions are in the South, but there are also a handful in parts of New York, California, South Dakota, and Michigan – in order to combat legally sanctioned voter suppression.
Section 5 is the one which actually stipulates preclearance, but without Section 4 specifying the affected areas, this is ultimately a decision to also strike down Section 5. The ruling did say that Congress could update the law and come up with a new standard for preclearance, but given the gridlock of the last few years that is extremely unlikely.
So until that happens, nine states that were previously entirely covered by Section 4 – Alabama, Alaska, Arizona, Georgia, Lousiana, Mississippi, South Carolina, Texas, and Virginia – do not have to obtain automatic preclearance before changing districting or voting laws in a way that may put minority voters at a disadvantage.
Below, some instances of voter suppression that would now be legal after throwing out Section 4 and 5.
In June 2011, South Carolina submitted a pre-clearance application for the States photo ID-law, Act R54. Following the submission, a letter from the Civil Rights Division of the ACLU to the Department of Justice asked that they object to the proposed changes because “given the information presented before the legislature when the bill was pending, it is reasonable and fair to conclude that the law was enacted … to reduce voter turnout among South Carolina’s African-American voting population”.
Devin Castles contributed reporting.
The Civil Rights Division of the Department of Justice rejected the request in 2011, arguing that “minority registered voters were nearly 20% more likely to lack DMV-issued ID than white registered voters, and thus to be effectively disenfranchised by Act R54’s new requirements”.
The letter repeatedly refers to Section 5 of the Voting Rights Act as a basis for its decision.
Texas has lost more Section 5 enforcements suits than any other state in the country, and for reporters specializing in voter suppression, the state has been a kind of worst-case scenario in racial gerrymandering.
One of the suits filed by civil rights groups found that although whites’ share of the Texas population declined in recent years from 52 to 45 percent, “they remain the majority in 70 percent of Congressional districts”.
On August 8, 2012, a federal court in Washington agreed with the earlier Department of Justice objection that found Texas’s redistricting activities discriminatory. The court wrote that the redistricting was “enacted with a discriminatory purpose” and was not qualified for the preclearance required under Section 5 of the Voting Rights Act.
In 2012, Section 5 blocked changes in Beaumont, Texas, that would have changed the method of election from seven single-member districts to five single-member districts. This at-large redistricting and dilution of minority votes would have made it very unlikely that black voters could elect candidates of their choice – one of the litmus tests for Section 5.
In 2012, the city of Decatur, Alabama applied to change its structure by eliminating two city council districts. This change would have diluted the only district in the city that was majority-minority. After the Department of Justice requested more information on the plan, it was abandoned because city officials assumed it would be rejected under Sections 4 and 5 of the Voting Rights Act.
In 2013, a mayoral candidate suggested that if the Supreme Court struck down Section 5, the “pre-clearance issue” would no longer be of concern if they were to re-submit the plan.
What’s happening already
From the AP:
After the high court announced its momentous ruling Tuesday, officials in Texas and Mississippi pledged to immediately implement laws requiring voters to show photo identification before getting a ballot. North Carolina Republicans promised they would quickly try to adopt a similar law. Florida now appears free to set its early voting hours however Gov. Rick Scott and the GOP Legislature please. And Georgia’s most populous county likely will use county commission districts that Republican state legislators drew over the objections of local Democrats.
Alabama and South Carolina also announced plans to implement previously delayed voter ID laws:
Alabama: In 2011, the state passed a law requiring photo ID to vote, but never cleared it with the DOJ. Both the attorney general and the secretary of state said Tuesday they believed their plans could now be implemented in time for the 2014 elections. […]
South Carolina: The Palmetto State passed a similar voter ID law in 2012, but DOJ at least succeeded in delaying its implementation. South Carolina’s attorney general issued a statement following the decision, lauding the Court for allowing the preclearance states to “to implement reasonable election reforms, such as voter ID laws similar to South Carolina’s.”