by Franita Tolson, the Betty T. Ferguson Professor of Voting Rights, Florida State University College of Law.
*This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.
The fiftieth anniversary of the Voting Rights Act of 1965 provides an opportunity to reflect, not only on its marveled history, but also on the next frontier of voting rights litigation and policy. The Act has faced unprecedented challenges in recent years, culminating in the 2013 U.S. Supreme Court decision of Shelby County v. Holder. In Shelby County, the Court invalidated the coverage formula of section 4(b) of the Voting Rights Act. The coverage formula required certain jurisdictions, mostly in the south, to preclear all changes to their electoral laws with the federal government under section 5 of the Act. The Court found that the formula unduly infringed on the states’ sovereign authority over elections because Congress had not updated the formula in over forty years, and racial discrimination in voting had substantially decreased over this time period.
Contrary to the Court’s assertions of post-racialism, the years since Shelby County have welcomed a considerable increase in the number of restrictions designed to undermine the right to vote. According to the Brennan Center, states have introduced 113 bills this year alone that limit access to registration and voting. There also has been litigation challenging voting restrictions in North Carolina and Texas, which enacted very restrictive voting laws immediately following the Shelby County decision. Unsurprisingly, both the U.S. Department of Justice and private litigants have turned to section 2 of the Voting Rights Act to challenge these provisions after the Supreme Court crippled the preclearance regime of sections 4(b) and 5. Section 2 of the Act forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” Unlike the preclearance regime, section 2 applies nationwide and allows plaintiffs to challenge a law after it goes into effect.
The strategic decision by the Justice Department and private litigants to use section 2 to fill the gap left in the Voting Rights Act post-Shelby County has brought renewed attention to section 2’s constitutionality. The Supreme Court has never directly addressed this issue, and critics argue that section 2 raises many of the same federalism concerns as the recently invalidated coverage formula. Texas, in the current litigation over its voter identification law, explicitly argued that it is unconstitutional to apply section 2 to address the racially discriminatory effects of its voter identification law absent a showing that the law is intentionally discriminatory. So far, courts have been unresponsive to this type of argument, but very few courts have confronted the issue in the post-Shelby County world.