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The Supreme Court could strike down part of the Voting Rights Act. Here’s what that would mean

Justice Antonin Scalia is really worried about whether the Voting Rights Act is fair to white people.  (Jeffrey MacMillan / The Washington Post)

In heated oral arguments Wednesday, the Supreme Court justices gave the impression that they're ready to get rid of a key section of the Voting Rights Act. At issue is section 5, which requires the Department of Justice to issue a "preclearance" of any changes to districting or other voting laws in a number of set jurisdictions, covering most of the South but also Manhattan, Brooklyn, some counties in California and South Dakota, and towns in Michigan and New Hampshire.

Justice Antonin Scalia argued that the laws had the effect of requiring racially motivated gerrymandering, amounting to the "perpetuation of a racial entitlement" on the part of black legislators and constituents benefiting from the districting. Chief Justice John Roberts agreed, asking Solicitor General Donald Verrilli, "Is it the government's submission that the citizens of the South are more racist than the citizens of the North?"

Justice Anthony Kennedy, the swing justice on the court, seemed less concerned than Scalia about whites being treated unfairly and less concerned than Roberts about the risk of discriminating against Southerners. Instead, he questioned the law on on federalism grounds. "If Alabama wants to have monuments to the heroes of the Civil Rights Movement, if it wants to acknowledge the wrongs of its past," Kennedy asked Verrilli, "is it better off doing that if it's an own independent sovereign or if it's under the trusteeship of the United States Government?"

But what would actually happen if Section 5 were overturned? Rick Pildes, an election law expert at New York University, thinks some of the reactions to those questions on the voting law are hyperbolic. He notes that the home page of the Huffington Post Web site featured the headline "Back to 1964?" Nonsense, he argues. "No one in their right mind can think that there’s a risk that we’re on the verge of going back to the world that existed before 1965."

So, what is the risk, if there is one? Pildes notes that the Justice Department has come to use section 5 more as a tool to that ensure minority populations are represented in legislative bodies than a way to tackle "ballot box" issues, like voter ID, wait times at the voting booth, and so forth. "For several decades now, it’s been far more significant in terms of redistricting issues than it has in 'access to the ballotbox' issues," he says. "We like to talk about first generation versus second generation claims. First generation claims are about access to the ballot box. Second generation claims are about the representativeness of districts and how they are constructed."

And Pildes isn't convinced that doing away with section 5 would have much of an effect on second generation claims. For one thing, the Justice Department rejects only a tiny fraction of changes to voting and districting laws. An internal study found that the agency raised objection to less than 0.1 percent of all law changes between 1995 and 2004.

But, more significant, section 2 of the law allows for very similar objections to be made through federal lawsuits, rather than as complaints to Justice. "Section 2 is used in litigation all the time to challenge redistricting," Pildes says. "Section 5 is mainly a procedural device for challenging redistricting, and the stakes are high enough generally that the losing side will turn to section 2 if section 5 is no longer available."

What does worry Pildes is the possibility that section 5 has deterred localities from creating harmful ballot box regulations and that without it local governments would move to make it harder for disadvantaged groups to vote. But there are other tools there, he says, that could work to avert that. "There are a lot of other laws by now, both statutes at the national and local level, that provide mechanisms for challenging objections to voting," he notes. "These voter ID laws, those were struck down in many parts of the country through litigation under state constitutions in areas that section 5 doesn’t apply to."

But it's worth noting that these mechanisms are less immediate than section 5. Pamela Karlan, a voting rights expert at Stanford Law who filed a brief in support of section 5 in the current case, noted to NPR that all districts have to do to be exempted from the law is have a clean record of 10 years without Justice Department objections. Shelby County, Ala., the plaintiff in this case, does not meet that requirement because it tried to redistrict a city councilor out of his seat. The councilor didn't realize what had been going on until Justice rejected the plan. Under section 2, he would have had to take the council to court for its actions, potentially leading to a long court process before he was able to keep his seat. "Section 5 might make those challenges cheaper or easier," Pildes notes.

But the debate the Supreme Court is considering only covers part of the range of views on section 5. In a redistricting context, the Justice Department has tended to promote the creation of districts with a majority of a racial minority within their bounds (majority-minority districts), the theory being that members of oppressed groups should be represented in legislative bodies if those groups are to be represented adequately. This type of representation is referred to by political scientists and legal scholars as "descriptive representation."

Others have argued that this is not enough. Lani Guinier, a professor at Harvard Law School, wrote a famous paper called "The Triumph of Tokenism" in 1991, arguing that a system of proportional representation would do a better job of representing black interests than does simply maximizing the number of African Americans in legislatures. "Black electoral success has neither mobilized the black community nor realized the promised community-based reforms," she wrote.

Political scientists Charles Cameron, Sharyn O'Halloran and David Epstein backed up that argument when they found that majority-minority districts like those created by the VRA do not maximize substantive representation, or the election of legislators who agree with the prevailing view of a racial minority group. That's because they concentrate like-minded minority voters into certain districts, meaning those voters have little representation outside those districts. That makes it easier for candidates judged by members of the relevant minority group to not share their interests to gain those outside seats. Epstein and O'Halloran have found that each additional majority-minority district increases the number of conservative-held seats by two.

Still, even O'Halloran and Epstein think section 5 is worth preserving, as in truly egregious cases it's better than less efficient mechanisms and it doesn't make the situation markedly worse than it would be with only section 2. Heather Gerken, a professor at Yale law school, adds that majority-minority districts provide safe seats that allow minority groups to build seniority and thus better serve their constituents. "That’s where having stability really matters," she says. But Gerken acknowledges that there's a tradeoff. Promoting minority interests, legal scholars are increasingly arguing, requires balancing a need for equitable representation in government with the potential that districting allowing for such representation will end up hurting the very community it was designed to help. Whether we're on the right side of that tradeoff curve is perhaps a more interesting question than "is the Voting Rights Act unfair to the South."