What Did VRA Preclearance Actually Do?: The Gap Between Perception and Reality Part II

By Rick Pildes & Dan Tokaji

The primary goal in our earlier post was to bring greater policy and legal realism to discussions of Section 5 — both in terms of (1) historical perspective on what Section 5 actually did and (2) on what kind of voting policies are likely to be most effective going forward.  These conversations are essential for those, like us, concerned with preventing new barriers to access and with expanding access to more eligible voters.

(1) In terms of how Section 5 actually functioned, the responses on this blog add greater detail that is fair enough, but they do not, in our view, affect our main empirical point: that, for several decades, Section 5 has played much less of a role than most people assume in protecting access to the ballot box.  Far more often, Section 5 was invoked to address vote dilution, not access.  And even leaving this comparison aside, when we look simply at the absolute number of objections to access barriers, it’s easy to see that the number has been extremely low in recent decades – and was actually far lower even in the early years of Section 5’s existence than we expect most commentators realize.

We focused on the period between 2000 and 2012 in our initial post, but consider the following graphically-presented information for the whole history of Section 5’s life.  This Figure is taken from Bruce E. Cain and Karin MacDonald, Voting Rights Enforcement:  Navigating Between High and Low Expectations, in The Future of the Voting Rights Act 130 (D. Epstein and R. Pildes et al. eds.) (2006):

Cain&MacDonald-VRAObjections

Moreover, while Justin Levitt points out that not all redistricting is statewide, it’s similarly true that not all “ballot access” issues involve statewide laws – important  ballot design changes can take place at the county level and have only local effects.  Objections don’t tell the whole story, of course, but as the Fraga and Ocampo study shows, the pattern is the same for both objections and more information requests (MIRs) going back three decades.

As Justin also rightly points out, not all objections and MIRs affect the same number of voters.  But it is much more difficult to quantify which objections matter “most.”  Objections to statewide redistricting plans, which were common, surely matter a great deal.  While Justin emphasizes the recent Texas statewide voter ID law, the whole point of our post is that these kind of laws were not typical of those that Section 5 blocked in the past – and the very point of Mike Pitts’ response is that we should now, for partisan reasons, expect laws like Texas’s law to be more likely to be enacted than in recent decades.  None of the comments cast any real doubt, in our view, on our historical claim that, in recent decades at least, Section 5 had not played as great a role in protecting access to the ballot as is commonly believed.

(2).  Counterfactuals about what Section 5 would have done in the future, had the Court not decided Shelby County, are necessarily speculative on all sides.  Our aim was to inject greater realism with respect to two points that inform the debate over what voting policies should be pursued prospectively.

First, Mike Pitts is right to suggest that new barriers to voting today are mostly likely going to come about as a result of partisan political competition and efforts to gerrymander the electorate in favor of one party or the other.  But our point is that it is precisely this reality that reveals the limitations of the Section 4/5 regime – and suggests that we should concentrate on measures designed to improve access more broadly.  Section 5 wasn’t designed to be a major bulwark against partisan manipulation of access to the vote.

Moreover, Section 5’s race-based standard didn’t make partisan manipulation itself illegal, except in places where partisan restriction on access closely correspond to race in particular ways that Section 5 doctrine had not sorted out clearly yet.   Partisan manipulation of voting rules isn’t limited, of course, to covered jurisdictions. Nor – when partisan political competition is driving these laws – is it plausible to imagine devising a coverage formula that can adequately predict where those restrictions will arise tomorrow, much less ten or twenty years from now.  And precisely because these laws are arising from partisan political pursuit of self-interest, Section 5’s efficacy might well have depended on who happened to control the levers of power in DOJ.  While Section 5 may have “worked” from the perspective of liberals in a few very recent, high profile cases, comparable restrictions on access were approved during prior Republican administrations.

Second, we want to inject more realism about how much legal change has occurred in the last 30 years concerning the VRA. The Supreme Court as it existed from roughly 1965 to 1990 is not the Court that has been in place in the years since.  In that sense, Shelby County is not a one-off decision that happened to occur at one isolated moment in time.  We have to recognize that, for decades now, the Supreme Court has adopted a more skeptical stance toward race-conscious government action, especially in the realm of democratic politics.   There is no recent precedent from the Court (at least none we can recall) on Section 5’s application to participation barriers. But we suggest greater caution about whether the current Court would understand Section 5 to block access barriers without clear evidence of a substantial racially disproportionate impact or, if it did, that the Court would uphold the constitutionality of such applications of Section 5.  The fact that three lower-federal courts blocked or modified recent changes in Texas, South Carolina, and Florida is not a reliable guide to how the Supreme Court would have handled those issues.  Nearly all those lower-court judges would also have upheld the constitutionality of Section 4/5, contrary to the Court.  In sum, we shouldn’t be excessively confident about what Section 5 would have done to protect access to the vote, even if the Court hadn’t decided Shelby County.

Most important are the implications for what should be done going forward.   While lingering disagreements at the margins over what the data prove are inevitable, the important question is whether  better means exist by which to protect against new unjustified barriers to voting, and even to expand access.  We think there are means outside the Section 5 model that are not only more effective in today’s circumstances, but also more politically viable and more likely to be upheld as constitutional.  These include, to name just a few, expanded voter registration, federal provision of easily available voter ID to eligible voters, greater disclosure, and state constitutional lawsuits.  At this point in our history, thinking beyond the model of Section 5 is likely to generate the most effective and widespread protections for the right to vote.

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