It’s OK if the Supreme Court Strikes Down Part of the Voting Rights Act

Eric Posner weighs in.
Nov. 20 2012 3:35 PM

Don’t Worry About the Voting Rights Act

If the Supreme Court strikes down part of it, black and Hispanic voters will be just fine.

Voters wait to fill out their ballots ballots at the North Miami.
Voters wait to fill out their ballots ballots at the North Miami Public Library after standing in line on November 1 in North Miami, Florida.

Photo by Joe Raedle/Getty Images.

Earlier this month, the Supreme Court agreed to hear the case of Shelby County v. Holder, a challenge by an Alabama county to Section 5 of the Voting Rights Act. Under Section 5, states and counties with a history of discriminatory voting practices are not permitted to change the rules for elections without first persuading the Justice Department (or a court) that their new policies will improve, or at least not harm, minority representation.

The court agreed to hear Shelby County’s challenge just three days after the re-election of President Obama. Many commentators believe the timing is no coincidence. The five conservative justices have already expressed skepticism about laws that give advantages or special consideration to minorities. Having just seen an African-American re-elected as president, they might think the moment is right to strike down a law that is based on the assumption that the South, where Section 5 mostly applies, still discriminates against minority voters more than the rest of the country.

Liberals, among them Slate’s Emily Bazelon, are wringing their hands. They point out, correctly, that President Obama’s re-election does not prove that racism has disappeared, or that Southern states no longer try to disenfranchise minority voters. Don’t widespread state efforts to enforce new photo ID laws prove just the opposite? But these concerns are overstated. A judgment that Section 5 is unconstitutional would have ambiguous, and probably minor, effects on minority representation and electoral outcomes.

One reason for this is that there is another section of the Voting Rights Act that protects minority voters. Under Section 2, parties can challenge discriminatory redistricting plans, photo ID laws, and other efforts to dilute the power of minority voters. The major differences between Section 2 and Section 5 are twofold. First, Section 5 prevents laws from going into effect until the Justice Department says OK (the approval is called “preclearance”), while Section 2 requires voters (or the Justice Department) to challenge a law in court and assume the burden of proof for striking it down. But this difference is relatively minor, at least at the congressional and state levels (as opposed to, say, school boards), because candidates, public interest groups, and the Justice Department have the incentive and the resources to challenge discriminatory voting laws in court.

The second difference is that, in disputes over redistricting, Section 5 protects minorities in districts where they compose less than 50 percent of the population, but can elect their preferred candidates with the help of like-minded white voters. In contrast, Section 2 protects minorities only where they could form a majority in a district by themselves. But this difference doesn’t matter much either, because there aren’t actually many districts that are protected by Section 5 but not by Section 2.

Another reason why Section 5’s downfall might not prove disastrous to minority voters is that, while its potency in combating Jim Crow-style discrimination was undeniable, its benefits in our more sophisticated era are more uncertain. The core of Section 5 is its ban on efforts to reduce the level of minority representation in a state, for example by dispersing minority voters across many white-majority districts so that they are always outvoted (or with new ballot access restrictions). But the provision still permits Republican politicians to pack a large number of minority voters into relatively few districts (just no smaller a number than before), thus preventing minority voters from joining with white Democrats to defeat Republicans in other districts. The upshot is that while the number of minority legislators has increased in many jurisdictions covered by Section 5, so has the number of Republican-dominated state legislatures, and Republican representation in Congress as well. Minorities have gained more seats for themselves in legislatures, but not necessarily more Democratic officeholders to fight for the policies they care about.

This does not necessarily mean that Section 5 has hurt minority groups. A full assessment of the provision would depend on a variety of factors that are difficult to measure—the degree to which voting is polarized between whites and minorities, and between Republicans and Democrats; whether minorities gain more from electing minority representatives or from electing white politicians who represent their interests; and how much influence a legislative minority can have on policy outcomes. These are factors that can differ from state to state, and since it is hard to know these things, it is hard to be know whether the elimination of Section 5 would harm—or help—minorities.

There are still deeper problems that make it difficult to predict the consequences if the Supreme Court strikes down Section 5. For instance, it’s possible that this part of the Voting Rights Act actually exacerbates the problem of gerrymandering. Because the legislature draws district lines in most states, politicians can enact gerrymanders that favor the party that controls the legislature (if there is unified government) or that favor incumbents (if government is divided). Either way, voters lose. By giving one party an electoral advantage over the other, gerrymandering distorts the connection between voters’ preferences and the makeup of the legislature. By entrenching incumbents, it weakens their incentives to respond to public opinion and implement good policy. Yet the legal protections against gerrymandering are very weak.

Section 5 may make matters worse because when Republicans pack Democrats into a few minority-controlled districts, they can say that Section 5 made them do it. And because most districts in Section 5 states are lopsidedly Republican or Democratic, incumbents need not fear losing re-election and hence lack incentives to work hard. This is a problem that afflicts both white and minority representatives.

These problems did not exist when the Voting Rights Act was passed in 1965. Then, Southern states were dominated by the Democratic party. Voting gains for African-Americans came only at the expense of whites who had previously benefited from their disenfranchisement. But the modern world is not one that pits blacks against whites, but one in which numerous minority groups—African-Americans, Hispanics, Asian Americans, and others—vie for political influence in the battle between Democrats and Republicans.  As the country becomes more diverse, Section 5 may contribute to tension among these groups, though this has not yet much occurred.

Our attention thus should be focused less on the Voting Rights Act, and more on electoral reform that limits gerrymandering. At this point in our history, that’s what would make representation fairer—for all voters. And there is a path forward. Most liberal democracies do not leave redistricting to incumbent legislatures. They assign the task to independent commissions, which are nonpartisan and possess technical expertise. A few American states—Arizona, California, and New Jersey—have experimented with commissions for redistricting. If commissions take over everywhere, laws protecting minority voters will probably still be necessary, but they will play a subordinate role. And that would be a good sign.

Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice. Follow him on Twitter.

Nicholas Stephanopoulos is a professor at the University of Chicago Law School, specializing in election law.