Voting rights advocates are testing whether a little-used provision of the Voting Rights Act could limit the damage of the Supreme Court ruling that struck down a key part of the landmark civil rights law.
Hours after the Supreme Court’s verdict was announced, representatives for the state of Texas celebrated its demise by announcing that they would move ahead with restrictive voting law changes that will disproportionately disenfranchise minorities. Those changes were previously blocked by the Justice Department, through a part of the Voting Rights Act the forces jurisdictions with a history of discrimination in voting to submit their election law changes to Washington in advance, often referred to as “preclearance,” under Section 5. Preclearance prevented discrimination in advance, rather than relying on drawn out litigation that might not be resolved until long after ballots are cast.
Section 4 of the Voting Rights Act, which the high court struck down as unconstitutional, determined which jurisdictions were covered by that requirement. But Section 3 of the Voting Rights Act allows the federal government to subject jurisdictions with recent records of deliberate discrimination to the preclearance requirement. With Congress polarized and unlikely to come together to fix Section 4′s coverage formula, Section 3 could become the primary tool for the Justice Department and voting rights activists seeking to patch the gaping hole left by the Supreme Court’s verdict. Travis Crum, now a clerk for federal judge David S. Tatel, laid out this approach in an article for the Yale Law Journal in 2010, anticipating that the Supreme Court would someday strike down part of the Voting Rights Act. Crum called Section 3 the Voting Rights’ Act’s “secret weapon.” [...]
“What you’re likely to see in states where these actions are brought is states trying to avoid an adverse Section 3 ruling by saying, our real intent here is to hurt Democrats. Since that’s our intent, that’s not a racial intent and that’s not forbidden by the Constitution,” says Brenda Wright, a legal expert with liberal think tank Demos. Judges might not subject jurisdictions to preclearance even if deliberate discrimination is proven, or they might do so only in areas related to the discriminatory policy.
Wright pointed MSNBC to a 2004 Section 2 case in Massachusetts where officials said they were just trying to protect incumbents when they redrew legislative districts in a manner that weakened the voting powers of minorities. It just so happened that the incumbents happened to be white and the voters they were disenfranchising were black and Latino. The court didn’t buy it, but under Section 2, unlike Section 3, you need to prove only the changes will adversely affect minorities, not that they were intended to.