Nicholas Stephanopoulos on Section 5 of the VRA (#UChiLawSCt)

Section Two Minus Section Five
Nicholas Stephanopoulos
The Huffington Post
June 26, 2013

In a dramatic decision yesterday, the Supreme Court essentially obliterated one of the two pillars of the Voting Rights Act. The provision at issue, section 5 of the Act, had required certain jurisdictions, mostly in the South, to receive federal approval before changing any of their election laws. According to the Court, Congress overstepped its bounds when, in 2006, it renewed its formula for determining which areas were subject to the preapproval requirement. Congress's formula was obsolete, in the Court's view -- "based on decades-old data and eradicated practices" -- and no longer captured the places with the worst records of discrimination.

With the effective demise of section 5, the Act's other pillar, section 2, assumes even greater importance. While section 5 banned policies that reduced the electoral power of minorities, in covered areas only, section 2 forbids practices that "dilute" minority voting strength anywhere in the country. Unfortunately, section 2 is a poor substitute for section 5. Both procedurally and substantively, the protections it offers to minority voters are weaker. With respect to redistricting in particular, according to my research, about 150 districts safeguarded by section 5 now lack any protection under section 2.

To begin with, the burden of proof under section 5 was on the jurisdiction that wanted to amend one of its election laws. Unless the jurisdiction could prove that its amendment would not make minorities worse off, the amendment would not go into effect. Under section 2, in contrast, plaintiffs are responsible for demonstrating that unlawful vote dilution has taken place. And while their lawsuits work their way through the courts, jurisdictions typically are free to implement the disputed policies.