On Tuesday morning the Supreme Court struck down section 4 of the Voting Rights Act. Unless you are a lawyer — and maybe even if you are one — it’s hard to understand what that means for politics.
The Fix is no lawyer — despite Fix Mom’s urgings — but we do know lots of good election lawyers, and we consulted with them in the immediate aftermath of the Court’s ruling to get a sense for what it all means.
So, here goes.
Section 4 of the VRA creates a formula that determines what states should be subject to Section 5, which requires states to submit any changes to election or voting laws, or alterations of state legislative or congressional district lines, to the Justice Department for approval. (That process is commonly known as pre-clearance.) That formula was — until today — based on a) states that had used some sort of ballot test (literacy being the main one) to determine whether people can vote and b) whether less than 50 percent of eligible voters were registered to vote by November 1964. In essence, states and counties with a history of racial discrimination were required to seek pre-clearance. (You can read the full section 4 provision here.)
With no Section 4 — the Court asked Congress to determine a new formula — there is no section 5, according to a Democratic election lawyer who was granted anonymity to speak candidly. ”Unless Congress creates a new coverage formula, Section 5 is not in force,” said the source. In essence, the Court said that the Justice Department still has the right to approve of line-drawing under the VRA but by invalidating the formula for determining what states/counties are subject to the VRA they made that power moot.
Given Congress’ inability to do, well, anything, the idea that they would wade into this incredibly contentious issue at any point in the near future seems unlikely. So, if Congress does nothing, what are the political consequences?
Since the ruling is so fresh, it’s difficult to know.
“There will be lots of people on all sides looking at current section 5 covered districts and seeing whether they need to be redrawn to comply with the Constitution,” said the Democratic lawyer. “This will likely spur another round of redistricting changes and challenges in some places.”
What we do know is that those consequences will be primarily visited in the 9 states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia – that are entirely covered by the VRA. The impact could also be felt in the handful of counties in other states where pre-clearance is required.
Here’s a map of all areas covered — in whole or in part — by the VRA:
One potential change could be the unspooling of majority-minority districts, which had led to a significant increase in the number of black and Hispanic lawmakers serving in Congress. In states covered by the VRA, line-drawers were required to maintain the number of majority-minority districts or run afoul of pre-clearance. With Section 5 not currently enforceable, states might consider undoing some of those districts — moving reliably Democratic black and Hispanic voters into other more Republican-leaning seats and in some states making it less likely that those seats would elect Democrats.
That potential reality is what has led some leading African American legislators to condemn today’s decision. “What the Supreme Court did was to put a dagger in the heart of the Voting Rights Act,” Georgia Rep. John Lewis (D) told ABC’s Jeff Zeleny in the immediate aftermath of the ruling.
The counter-argument, of course, is that the ruling could have less political impact than the likes of Lewis believe.
Any redrawn majority-minority district would still be subject to Section 2 of the VRA, which “prohibits voting practices or procedures that discriminate on the basis of race, [or] color”, a provision that many election lawyers believe would invalidate any attempts to change the current maps
And, split control of the state legislatures/governorships, which typically draw the lines, in most of the states covered entirely by the VRA make any quick action in re-structuring congressional districts very unlikely.
Where the story goes from here then depends in large part on the willingness of state and local officials to push the definitional boundaries of the Court’s ruling. And, we’re not there just yet.