Posted June 26, 2009 by Armand Derfner

What does the Supreme Court Voting Rights Act decision mean we should do now?

Of all the calls on Congress to “cure” Section 5 of the Voting Rights Act before the Supreme Court kills the law altogether in the next case, none is stranger than the suggestion that Congress should “update” the “coverage formula.”  The notion stems from the view that Section 5 or Congress is “living on borrowed time” before the Supreme Court holds the Act unconstitutional. There is no denying the palpable hostility expressed in Chief Justice Roberts’ opinion in this week’s MUD case, but the legislative solution proposed by some observers is off the mark because it ignores the nature and history of the Voting Rights Act, and it pays more attention to what the Supreme Court said than what it did.

Section 5 requires certain states and local governments (predominantly in the Old Confederacy) to obtain federal pre-clearance of any voting change before putting it into effect.  To determine which jurisdictions are subject to this requirement, Section 5 has an entrance test (coverage formula) and an exit exam (bail-out).  In the MUD case, the Supreme Court sidestepped the question of whether Section 5's protections are still needed, all-or-nothing, and instead focused on how to answer that question one jurisdiction at a time.  In doing so, the Court reinterpreted the statute so as to broaden the category of jurisdictions eligible to seek bail-out, and sent the case back to the lower court.  There, the MUD district can pursue its suit to bail out, which before the Court’s new interpretation it was ineligible even to bring.  Since the MUD case would thus be decided at retail, the Court held there was no need to decide the constitutionality of Section 5 wholesale.

So what will happen under the new regime of Section 5?  The Court’s opinion said, ominously, that bail-out has proved an inadequate safety valve, noting that only 17 jurisdictions have successfully bailed out.  What is also true, however, is that these are the only jurisdictions that have tried to bail out, so in fact the record is that every jurisdiction that has tried has been successful.  (Chief Justice Roberts’ opinion carefully included the numerator, 17, but forgot to mention the denominator, also 17.)  Now that the Court has broadened eligibility, and with heightened attention on it, we can expect to see more bail out suits, and it will become clearer whether bail-out is an adequate safety valve or not.  Because the bail-out test depends on presence or absence of certain indications of voting discrimination in the jurisdiction during the previous ten years, the results of bail-out suits will play a major role in how the Supreme Court evaluates Section 5 next time.

That being so, it is hard to understand the calls for Congress to “update” the “coverage formula.”  The formula is based on elections of past years – 1964, 1968 and 1972 – but there is a reason for those dates.  Those were days of rampant disfranchisement in certain areas, and to identify which those areas were, the Act looked for areas where there was a literacy test and where the voter turnout in any of those years was abnormally low – which Congress reasonably took as a sound indication that the literacy test was being used to discriminate. 

If “updating” the coverage formula means removing some jurisdictions because the 1964-72 conditions are no longer present there, how do we determine where that is so?  The habits of 1964-72 may be in the distant past in some places, but Congress found many, many places where the habits of those days still linger.  It is the function of the bail-out suit to separate the sheep from the goats.  But if updating the coverage formula means adding new jurisdictions, that ignores the nature of the Act, whose stringent remedies were not designed to deal with all problems of voting discrimination, but only places with records of ingrained disfranchisement. Extending Section 5 beyond those places would surely bring constitutional challenges from some of the same people who now talk of updating the coverage formula. 

So let’s take the Supreme Court opinion for what it says and what it does.   Let’s see how bail-out works.  If necessary, if the bail-out mechanism proves to be too stringent or too lenient, Congress can re-visit the bail-out mechanism then.  When the Supreme Court said that the results of the bail-out process may give a sufficient answer to avoid the constitutional issue, that’s not chopped liver.  Let’s see how it really works before we tell Congress the sky is falling.