I do not mean in any way to minimize the impact of today's decision. It is a terrible ruling that sets an arbitrary standard for coverage. It also sets southern states free to pass restrictions on voting and get rewarded in the next election while the litigation against it proceeds.
While southern racists may-in a perverse turn of history given how close we are to Dr. King's "I Have a Dream" speech- be shouting, "Free at last!", they shouldn't be jumping to pass mountains of new voter restrictions. Preclearance is not dead, at least not yet...
Follow me over the flip for the glimmer of hope that still exists for voting rights in this country.
There are many sections in the Voting Rights Act of 1965. The ones that have been discussed the most lately have been sections 4 and 5. Section 4 defines a formula of coverage for which localities need to be covered by section 5, which is the section that lays out the process for preclearance. The court left section 5 intact, but struck down section 4. Since the two sections are intertwined though, section 5 is neutered by the loss of the coverage formula.
If you look up one paragraph in the act, however, in section 3, there is an entirely separate provision which has not--to my knowledge--ever been used, but if I were a lawyer in the Civil Rights division of the Justice Department, I would be studying very carefully. This is the "bail-in" provision of the Voting Rights Act:
I did a search of the decision to make sure, and as I guessed, Section 3 is never mentioned once in today's Supreme Court decision. This provision, which stands on its own wholly separate and apart from the provisions that were at issue today, could be the leg that civil rights advocates can try to stand on.
(c) Retention of jurisdiction to prevent commencement of new devices to deny or abridge the right to vote
If in any proceeding instituted by the Attorney General or an aggrieved person under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment in any State or political subdivision the court finds that violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision, the court, in addition to such relief as it may grant, shall retain jurisdiction for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the voting guarantees set forth in section 1973b (f)(2) of this title: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the court’s finding nor the Attorney General’s failure to object shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure.
42 USC § 1973a
Anthony Kennedy in fact pointed to this section during oral argument as a potential way out:
JUSTICE KENNEDY: Your time is --Now, that does mean that there will have to be a trial that forces a jurisdiction into this, so the Justice Department will have it's work cut out for it. However, the proverbial Sword of Damicles may yet be hanging over some southern states, Section 4 be damned anyway.
MR. REIN: Thank you.
JUSTICE KENNEDY: -- about ready to expire for the rebuttal period. But I do have this question: Can you tell me -- it seems to me that the government can very easily bring a Section 2 suit and as part of that ask for bail-in under Section 3. Are those expensive, time-consuming suits? Do we have anything in the record that tells us or anything in the bar's experience that you could advise us?
Shelby County v. Holder Oral Argument, pg 24
Watch this space...