Bracing for an impending Supreme Court decision that could limit the reach of the Voting Rights Act, liberal legal experts and advocates are assessing what to do if the court strikes down a central part of the law.
Addressing the annual convention of the liberal lawyers’ group the American Constitution Society, Rep. John Lewis, D-Ga., a pioneer of the civil rights movement, told an audience of more than 1,000 lawyers and law students in Washington, D.C., that as a young activist in the 1960s, he’d chosen to “get in trouble – good trouble, necessary trouble” using civil disobedience and street protests to win the right to vote. Now, Lewis said, “I think it’s time for all of us once again to get in trouble.”
Referring to the high court’s imminent decision on Section 5 of the Voting Rights Act, Lewis said, “We’re at a crossroads. Something’s going to happen, maybe next Monday, maybe next Thursday, the court is going to say something.”
Arguing that voting rights were in jeopardy, Lewis said “I think it’s time for all of us once again to get in trouble.”
In the Voting Rights Act case before the high court, Shelby County, Ala., is challenging the formula under which only some states, mostly in the South, are targeted and must get permission from the Justice Department or a federal court in Washington for any attempt to change voting procedures.
“What’s unique about Section 5 is that we’ve never (before) had a federal statute that singles out particular parts of the country for unique control by the federal government,” said New York University law professor Richard Pildes, a voting rights expert and a legal adviser to the 2008 Obama campaign.
Shelby County’s lawyers argue that the coverage formula, which relies on election data from the 1960s and 1970s to determine which places Section 5 applies to, is outdated.
If the court does strike down Section 5, “the most likely way they’ll do it is to go after the coverage formula,” Steven Shapiro, legal director at the American Civil Liberties Union, told the American Constitution Society meeting. “If the court goes down that road – and I hope they do not – the important takeaway is that’s not the end of the game. That just puts it all back on Congress’s hands.”
If the justices scrap the coverage formula, “It’s a call to action – it’s not a call for despair” Shapiro told the ACS convention.
Members of Congress may be disinclined to take up the highly charged political task of deciding anew which states to cover and which ones to leave free of federal supervision.
Pildes said Congress should have updated the coverage formula in 2006 to reflect where the voting barriers really were; instead, it used a voting formula that dated to 1965.
“I was very, very troubled during the reauthorization process for Section 5 in 2006 -- when I testified before the Senate Judiciary Committee -- that there was no effort made in Congress to do anything at all to signal in some way that Section 5 would be updated…in a way that would put the statute in the best possible position in the inevitable constitutional litigation that would follow,” he said.
But new strategies are emerging among progressives. Stanford University law professor Pamela Karlan, who has worked as an attorney with the NAACP Legal Defense & Educational Fund, said that in addition to the Fifteenth Amendment, which protects the right to vote, two other provisions of the Constitution – Article I, Section 4, which gives Congress the power to make or alter rules governing elections for federal office (the Elections Clause), and Article IV, Section 4, which gives the federal government the power to guarantee representative government in each state (the Guarantee Clause) – provide ample authority for Congress to pass laws ensuring that citizens can vote.
“We need to be thinking about what kind of legislation we want Congress to enact” using both the Elections Clause and the Guarantee Clause, she said. “Do I think either of these things is going to happen in the very short run? No, I don’t, because of the Congress we have.”
Like Rep. Lewis, Karlan mentioned street protests as an essential tactic: “Movements in the courts are a product of movements in the streets,” she said.
Pildes said if that the court strikes down Section 5, it would be a mistake to then focus the strategic efforts on ways to “tinker with Section 5” to make it more acceptable to the high court. “There’s much more power in the Elections Clause than in the civil rights model from the 1960s era…. We have to think about new ways – not stay with the status quo of the past – to protect the right to vote.”
He added, “The Department of Justice invokes Section 5 to block voting changes much less often than I suspect most people assume.” For example, in the 10 years leading up to the 2006 reauthorization of Section 5, the Justice Department reviewed more than 54,000 Section 5 submissions and objected to 72, an average of about seven a year or 0.153 percent.
Even if Section 5 is struck down, Pildes said, there are other routes to challenge discriminatory state or local impediments to registration or voting: for example, section 2 of the Voting Rights Act empowers the Justice Department to sue local governments anywhere in the country for discriminatory voting procedures.
And there are “state constitutional right-to-vote provisions, which were relied on in 2012 to lead state courts to invalidate or postpone voter ID laws in several states that Section 5 does not reach at all,” he said. He added that there are “the equal protection/due process protections for the vote, which is what federal courts relied on to require Ohio to open up its early voting sites to all on the weekend before the election.”
Pildes said, “We can be fairly confident that the high-stakes, high-profile issues -- like statewide redistricting or changes to statewide laws restricting voting -- will continue to be challenged” under other parts of federal law even if the high court invalidates Section 5. “The bigger concern is low-profile changes at the local government level, such as changes of polling place locations, which might either fall under the radar screen or not be high-stakes enough to justify litigation.”