By Kimberly Strawbridge Robinson
Bloomberg BNA
(June 15, 2017) After the U.S. Supreme Court’s landmark 2013 decision in Shelby County v. Holder, Democrats have increasingly turned to another part of the Voting Rights Act, Section 2, to challenge what they see as restrictive voting requirements.
Despite recent victories under that provision, election law litigator Paul M. Smith questioned its validity in a “post-Kennedy” world. Smith, of the Campaign Legal Center, Washington, was referring to the speculation that swing-Justice Anthony M. Kennedy might retire in coming years.
Section 2 isn’t likely to fall in the near future, William S. Consovoy, of Consovoy McCarthy Park PLLC, Washington, said. But if Democrats use Section 2 to aggressively attack state laws, it could put the provision at risk.
Smith, who frequently represents Democrats and minorities in voting right challenges, and Consovoy, frequently on the other side, were speaking on a voting rights panel at the annual convention of the progressive American Constitution Society in Washington June 9.
Prior to 2013, certain jurisdictions were required to “preclear” voting changes with either the Justice Department or a federal court. Under that preclearance regime, changes that weren’t pre-approved couldn’t go into effect.
But in Shelby County, the Supreme Court struck down the “coverage formula” that determined which jurisdictions were subject to preclearance.
That coverage formula was “irrational” because it was based on whether states discriminated against minority voters in 1965, Consovoy said. Because of that historical perspective, some now-problematic jurisdictions, like Wisconsin, weren’t covered by the preclearance requirement, while some now-non-problematic jurisdictions, like Michigan, were, he explained.
After that decision, minorities and Democrats have had to challenge voting restrictions after they’ve gone into effect. They are doing so under Section 2, which prohibits abridging the right to vote based on “race or color.”
