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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Section 5: Still on the Books, But Barely

You may have heard that the U.S. Supreme Court issued its long-awaited decision on a challenge to the constitutionality of Section 5 of the Voting Rights Act, the provision that requires nine states and a scattering of other jurisdictions to secure “preclearances” from the Justice Department for changes in election procedures or legislative districts (congressional, state or local).
To the surprise of many, the Supremes chose on a 8-1 vote to decide the case on the very narrow grounds of enabling the petitioning local government unit a chance to “opt out” of Section 5 coverage. But the opinion penned by Chief Justice Roberts makes it abundantly clear that the next challenge will lead to invalidation of Section 5 unless Congress acts quickly to update the evidence of discrimination underlying Article 5 coverage, and tailor coverage accordingly. The data for Section 5 coverage currently only goes up to 1972, though the historic data, of course, of jurisdictions that used to keep minorities from voting at all isn’t going to change.
There’s a pretty strong feeling among legal beagles that Congress won’t be able to meet this condition because of the intense wrangling that comparisons of this or that jurisdiction’s voting rights behavior will engender. So it’s probably tiime to begin thinking about what the next round of decennial redistricting will look like without Section 5 as a factor (though Section 2 lawsuits after the fact will still be available). I’ve got a post up at fivethirtyeight.com that briefly gets into the potential impact.

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