“Voting Law Decision Could Sharply Limit Scrutiny of Rules”

Must-read Charlie Savage NYT report on the difference between sections 2 and 5 of the Voting Rights Act begins:

If the Supreme Court strikes down or otherwise guts a centerpiece of the Voting Rights Act, there will be far less scrutiny of thousands of decisions each year about redrawing district lines, moving or closing polling places, changing voting hours or imposing voter identification requirements in areas that have a history of disenfranchising minority voters, voting law experts say.

A close look at the law demonstrates how a series of seemingly technical details amount to what is essentially a safeguard against violations in those states and regions covered by the law — most of which are in the South.

It also shows how that very bulwark comes at the cost of sharply tilting the playing field against those areas in ways that several conservative-leaning Supreme Court justices expressed alarm about during arguments on Wednesday.

The legal issue turns on two main parts of the act: Section Five, which covers jurisdictions with a history of discrimination, and Section Two, which covers the entire country. Both sections outlaw rules that intentionally discriminate against or otherwise disproportionately harm minority voters. Section Two would remain in effect even if the court strikes down Section Five.

But reliance only on Section Two would mean a crucial difference in how hard it may be to block a change in voting rules in an area that is currently covered by Section Five. Those jurisdictions, because of their history of discrimination, must prove that any proposed change would not make minority voters worse off.

I hope to write more about this soon, because Justice Kennedy seems to mistakenly believe that section 2 liability plus preliminary injunctions would be just as good as section 5 liability.

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