This is a suggestion too clever by half. The reasons why Section 5 doctrine won't be imported into Section 2 cases are of two kinds: good neutral reasons, of which you yourself have supplied the right ones; and the real reason, which is to make things harder for Democrats, who—in the parts of the United States that most completely lost the Civil War—are increasingly just black people. Given the real reasons and also the quite satisfactory legal reasons you have yourself given, you should have decided this was one of those good ideas that doesn't work.

The composition of the Supreme Court is an important practical issue in the conduct of partisan politics in the United States, I hear. Maybe more so than usual at the moment. Those who believe that "constitutional law" is a subject of its own, among whom you know I am not, are going to have a confusing time in the next few years.

Reimagining the Utility of Section 2 in the Wake of Shelby County

-- By NicoGurian - 17 May 2015

Effictiveness of Section 5 pre-Shelby County

Before the Supreme Court’s ruling in Shelby County v. Holder, the preclearance regime established by §5 of the Voting Rights Act required covered jurisdictions to submit proposed changes in voting laws or procedures to the Department of Justice (“DOJ”) for approval. A change would be approved unless the DOJ found the proposed change had “the purpose [or]…the effect of denying or abridging the right to vote on account of race or color.” 42 U.S.C §1973c(a). Alternatively, a covered jurisdiction could seek approval from a three-judge District Court in the District of Columbia. Id. Section 5’s preclearance regime was incredibly effective. For instance, in the 15 years before Shelby County, the DOJ rejected 86 attempted changes to voting laws in covered jurisdictions. In a recent six-year period, 262 voting changes were withdrawn or altered after the Department of Justice (DOJ) asked the jurisdictions for more information to assess whether they were discriminatory. This effectiveness helps explain why Justice Ginsburg characterized the Voting Rights Act as “one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history.” Shelby County, Ala. v. Holder, 133 S.Ct. 2612, 2634 (2013) (Ginsburg, J. dissenting).

Ramifications of Shelby County

In its decision in Shelby County, however, the court essentially gutted the operability of Section 5 by holding that the formula used to determine which jurisdictions Section 5 covers was unconstitutional. Justice Ginsburg compared the majority’s decision to do away with preclearance because it has worked so well to “throwing away your umbrella in a rainstorm because you are not getting wet.” Id at 2650. Her description rang true, as formerly covered states moved to enact voting laws that would not have been approved under preclearance immediately after the court’s decision. For instance, Texas officials announced on the day after the ruling that they would implement a voter ID law that had been blocked by Section 5.

Current Section 2 Approach

The gutting of Section 5 means that the only avenue left for litigation under the Voting Rights Act is Section 2. Traditionally, Section 2 has been used for vote dilution cases, challenging illegal gerrymandering and redistricting. See e.g. Thornburg v. Gingles, 478 U.S. 30 (1986). Given the inoperability of Section 5, however, advocates need to try and reimagine Section 2 to combat vote denial problems, such as voter ID laws. While the Supreme Court has not heard a Section 2 vote denial case, many federal circuit courts have. See, e.g., NAACP v. Husted, 768 F.3d 524 (7th Cir. 2014), League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th. Cir. 2008), Gonzalez v. Arizona, 624 F.3d 1162 (2010). These circuit decisions have all adopted a two-prong test that plaintiffs must meet to prove a Section 2 vote denial claim. First, plaintiffs must show that the law has a disparate impact on a protected class. Second, plaintiffs must demonstrate that the “burden of the challenged regulation must in part be caused by or linked to ‘social and historical conditions’ that have or currently produce discrimination against members of the protected class.” Husted, 768 F.3d 524 at 554.

The formula developed by the circuits is not ideal. First, requiring plaintiffs to prove that the burden of the challenged regulation must be causally linked to social and historical conditions places too high of an evidentiary burden on private plaintiffs. In Husted, for instance, the NAACP hired multiple expert witnesses to put together in-depth statistical studies analyzing the relationship between past discriminatory policies of the state of Ohio and the proposed changes to Early-In-Person voting. For private plaintiffs not selected as test clients by large organizations, meeting that burden of proof will be prohibitively difficult. Second, the Supreme Court demonstrated its reluctance in its decision in Shelby in the use of historical data, which the test developed by the circuit requires.

Rethinking Section 2 by adopting Section 5 standards

Instead, Section 2 plaintiffs should argue for the Court to use a two-pronged test that first looks to see if the challenged law has a disparate impact on a protected class, and then use the retrogressive-effect standard from Section 5. Under this analysis, the relevant inquiry simply becomes whether the challenged law makes it more difficult for African-Americans to participate in the political process as compared with their ability to do so without the law. It is true that there are differences between Section 2 and Section 5. Section 5 places the burden of proving the validity of a law on the jurisdiction; Section 2 requires the plaintiff to prove a law invalid. Section 5 prevents laws from going into effect; Section 2 primarily grants relief from laws already in effect. Section 5 claims are advanced by the DOJ; private parties advance Section 2 claims. However, these are mostly procedural differences and are outweighed by substantive similarities.

First, the plain text of Section 2 and Section 5 are almost identical, both prohibiting the “denial” or “abridging” of the right to vote. Second, it is possible that the Court might be receptive to this line of reasoning. Justice Kennedy, the Court’s swing vote, said at oral argument in Shelby “it is not clear to me that there is much difference in a Section suit now and preclearance.” Third, this new standard would reduce the evidentiary burden on plaintiffs, and avoid reliance on historical data that the Court is disinclined to find persuasive. Finally, this new standard would be efficient because courts have experience applying the Section 5 framework, and Section 2 cases “are among the most difficult cases tried in federal court.”

The neutering of Section 5 by the court in Shelby has opened the door to discriminatory voting restrictions once easily prevented. Section 2 is now going to have to do much more work than perhaps it was intended to do. A creative approach to its application, however, will help to at least plug part of the whole created by the Court in Shelby.

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