The Independent View: My Option for the Supreme Court Voting Rights Case

Today, the Supreme Court keep the Voting Rights Act but required a new coverage formula. In a 5-4 ruling that split the court along ideological lines, the court freed some or all of 15 states from the requirement that all changes to voting laws, procedures and even polling place locations get advance approval from the Justice Department or a panel of federal judges.

The formula for coverage under Section 4 of the Voting Rights Act

As enacted in 1965, the first element in the formula was whether, on November 1, 1964, the state or a political subdivision of the state maintained a "test or device" restricting the opportunity to register and vote. The Act's definition of a "test or device" included such requirements as the applicant being able to pass a literacy test, establish that he or she had good moral character, or have another registered voter vouch for his or her qualifications.

The second element of the formula would be satisfied if the Director of the Census determined that less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964. This resulted in the following states becoming, in their entirety, "covered jurisdictions": Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. In addition, certain political subdivisions (usually counties) in four other states (Arizona, Hawaii, Idaho, and North Carolina) were covered. In fully covered states, the state itself and all political subdivisions of the state are subject to the special provisions. In "partially covered" states, the special provisions applied only to the identified counties. Voting changes adopted by or to be implemented in covered political subdivisions, including changes applicable to the state as a whole, are subject to review under Section 5.

In 1970, Congress recognized the continuing need for the special provisions of the Act, which were due to expire that year, and renewed them for another five years. It added a second prong to the coverage formula, identical to the original formula except that it referenced November 1968 as the relevant date for the maintenance of a test or device and the levels of voter registration and electoral participation. This addition to the formula resulted in the partial coverage of ten states, including Alaska, Arizona, California, Connecticut, Idaho, Maine, Massachusetts, New Hampshire, New York, and Wyoming. Half of these states (Connecticut, Idaho, Maine, Massachusetts, and Wyoming) filed successful "bailout" lawsuits.

In 1975, the Act's special provisions were extended for another seven years, and were broadened to address voting discrimination against members of "language minority groups," which were defined as persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage." As before, Congress expanded the coverage formula, based on the presence of tests or devices and levels of voter registration and participation as of November 1972. In addition, the 1965 definition of "test or device" was expanded to include the practice of providing any election information, including ballots, only in English in states or political subdivisions where members of a single language minority constituted more than five percent of the citizens of voting age. This third prong of the coverage formula had the effect of covering Alaska, Arizona, and Texas in their entirety, and parts of California, Florida, Michigan, New York, North Carolina, and South Dakota.

In 1982, the coverage formula was extended again, this time for 25 years, but no changes were made to it. In 2006, the coverage formula was again extended for 25 years. Section 4, along with those other sections that are dependent upon it, such as Section 5 and 8, will expire in 2031.

The best way to handle this is during the census. Every ten years during the census all states are put on preclearance. Under the law, a jurisdiction can get out from under Sections 4/5 if it can show a ten-year record of non-discrimination.

They then file their bailout 10 year record. After the Justice Department review, the preclearance map will change. This will then affect each state when they file their redistricting maps.

With all the current laws making it harder for some to vote, I would like to see voters use the part of Section 4 that allows them to partition for the Justice Department to examine a bailout county or state and see if they have failed a bailout, and if proven, put them back on preclearance.

From Ballot Access News:

"Since it is not likely that Congress will re-write section four, the practical impact of today’s decision will be to increase the number of lawsuits. Section two of the act has not been limited in any way. It gives the U.S. Justice Department authority to sue any state or other jurisdiction that has an election law or practice that results in racial discrimination in voting. The number of such lawsuits will probably increase, because the new laws and practices that lead to such lawsuits will increase without the pre-clearance law in effect."