The new voting wars: a primer (UPDATED)

Trying to wrap your mind around the Voting Rights Act in the wake of the Supreme Court ruling on it, and the Justice Department's decision to weigh in aggressively in voting-rights cases? Here's a guide to readings and resources

UPDATE, July 25, 2013 (This replaces two earlier updates): On Tuesday, June 25, the Supreme Court dismantled a key provision of the Voting Rights Act. A month later, it was widely reported that the Justice Department would take fresh legal action in a string of voting rights cases, signaling its willingness to aggressively police voting rules to prevent discrimination. It is apparently starting by joining a redistricting case in Texas.

For line-by-line analysis of the Court’s June decision, see the annotated version on the Times website. The paper is also live blogging analysis of the ruling and (to some degree) its implications. Rick Hasen’s Election Law blog, meanwhile, has an excellent roundup of ruling coverage.

The primer below was originally published June 18, 2013, with the headline: The voting wars and the Supreme Court: a pre-ruling primer.

* * *

Once again, the Supreme Court has found itself on the front lines of the voting wars.
On Monday, the court struck down an Arizona law requiring residents to show proof of citizenship before registering to vote. And it’s about to weigh in on a far more consequential question: Whether to scrap a key portion of the Voting Rights Act, a 1965 law designed to root out tactics that stifle voting by blacks and other minority groups.

Specifically, the court will rule on a challenge to a provision, known as Section 5, which allows the Justice Department to pre-emptively block discriminatory voting practices in states and municipalities with a history of hindering minority voters. Almost everyone agrees that Section 5—which civil rights activists have dubbed the Act’s “heart” and “hammer”—has played an essential role in bringing blacks and other minorities into the political process, though critics argue the extraordinary federal meddling in state affairs is no longer justified.

If the court strikes down Section 5 it could upend the mechanics of our political system, altering everything from redistricting battles and electoral law to the tone of partisan squabbles. Unfortunately, these weighty implications rarely come through in the reporting, which so far has tended toward horse-race-style coverage—journalists parsing the Supreme Court justices’ comments or trying to game out how they might vote. Very few reporters have delved into the key questions the case raises: Is Section 5 still needed, or is it a relic that unfairly burdens certain states and municipalities based on old misdeeds? Will striking it down roll back the gains that blacks and other minority groups have made? Could it have unexpected consequences, such as easing partisan gridlock?

There are, however, some notable journalistic exceptions. In anticipation of the upcoming ruling, CJR has rounded up some of the best reporting on this case, known as Shelby County v. Holder, as well as resources for reporters—or anyone else—trying to wrap their mind around its significance.


The Big Picture
ProPublica has put out some excellent explainers on the Shelby County case. The most recent, published in February, covers everything from Section 5’s origin and evolution, to how jurisdictions with clean recent track records can opt out. Reporter Suevon Lee also gives a good overview of the provision’s reach; As she explains, it covers both “large-scale changes like redistricting and voter ID” and “small things like changing a polling place or precinct” in covered jurisdictions—among them nine states (Texas, South Carolina, Arizona, Georgia, Louisiana, Mississippi, Alabama, Virginia, and Alaska) and parts of eight others. Lee also notes:

Just this past year, the provision was the reason federal judges blocked voter ID laws in both Texas and South Carolina, voided new district maps in Texas and prevented early voting reduction of hours in parts of Florida, citing a potential adverse effect on minority voters.

For a more in-depth look at the history and impact of the Voting Rights Act, check out Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy by historian Gary May.

The Brennan Center for Justice has also assembled an eye-opening report on the potential implications of Section 5 being struck down.

The Close-up
In February, The Atlanta Journal-Constitution ran a groundbreaking series on the Voting Rights Act and the potential fallout of Section 5’s demise. Part one explores these themes through the lens of a single Georgia county.

As David Wickert writes :

The Voting Rights Act profoundly reshaped the political life of Georgia and the nation, and nowhere are its effects more starkly visible than in Fulton County. In the nearly half-century since it was enacted in 1965, blacks and other minority candidates have surged into elected office at every level. In places such as Fulton County, many white residents voted with their feet, moving out to less racially diverse areas. Proposed annexations and redistrictings could—and often did—become an overt or covert struggle over racial power. That tension is still very much alive today.

The story goes on to explain just how alive the struggle is: Georgia’s Republican-controlled legislature recently unveiled a new redistricting plan, which could dilute the power of black voters; “Among other things,” Wickert writes, “the plan would produce a new white-majority district and would pit two incumbent Democrats—both African-Americans—against each other.” These changes, which are under review by the Justice Department, probably wouldn’t pass Section 5 muster. But if the provision is struck down they won’t have to—a fact that drives home the stakes of the upcoming ruling as few stories have.

It’s worth noting that Fulton County’s situation is not unusual: Dozens of voting-system changes are awaiting Justice Department approval. If Section 5 disappears, even those that are patently discriminatory will go into effect.

You can find a wealth of information about specific cases on the Justice Department website.

A Texas Tale
Around the time the Journal-Constitution series ran, Emily Bazelon of Slate turned the spotlight on a power grab in Texas’s 23rd congressional district, which runs along the state’s southwest border. As Bazelon reports, the area is “among the least densely populated terrain in the country—and the most electorally disputed.” In 2006, a Democrat named Ciro Rodriguez snatched the district’s House seat from the Republican incumbent, after which the Republican National Committee targeted it for retaking. As Bazelon explains:

[The Republican] party politicians who controlled the state legislature and the latest round of redistricting after the 2010 census, effectively took Rodriguez’s seat away, handing it off to Republican Francisco Canseco—a Latino, but not the candidate most Latino voters supported. That, at least, is what was implied in a decision by three federal judges in Washington, D.C., who last August rejected the new map for District 23—along with the maps for the rest of the Texas congressional delegation, and the state Senate and House. (Two of the judges are Republican appointees. The third is an Obama pick.)

As the judges tell the story, the Republicans and their mapmakers tried for a particularly sophisticated circumvention of the Voting Rights Act in District 23. They didn’t reduce the percentage of Hispanic voters—they increased it, by 0.1 percent. But along the way, in the words of the court, the line-drawers “consciously replaced many of the district’s active Hispanic voters with low-turnout Hispanic voters in an effort to strengthen the voting power of CD 23’s Anglo citizens. In other words, they sought to reduce Hispanic voters’ ability to elect without making it look like anything in CD 23 had changed.” As proof, the judges pointed to an email from the lawyer for the Texas House speaker to one of the mapmakers, urging him “to help pull the districts’ Total Hispanic Pop and Hispanic CVAPs [citizen voting age population] up to majority status, but leave the Spanish Surname and [turnout numbers] the lowest.” This would be “especially valuable in shoring up Canseco,” the email continued.

The District 23 saga is a classic example of the partisan misbehavior that the Voting Rights Act, and in particular a part of the law called Section 5, was enacted to stop.

This anecdote is illuminating, in part because it shows the official tendency to find ever-more-clever ways to hamstring minority voters. Without Section 5’s preclearance requirement, civil rights activists would have to fight these shenanigans with case-by-case lawsuits—a scenario that Jeffrey Toobin of The New Yorker likens to “a maddening and very high-stakes, game of whack-a-mole.”
MSNBC and ProPublica have also dug into Texas measures that were recently blocked under Section 5—including a voter ID law, which a federal court has found was “virtually certain” to hamper minority voting.

Texas is not the only state where this has happened. In the last year alone, the Justice Department and federal judges have blocked more than a dozen electoral changes in covered jurisdictions. The “Section 5 Objection” page on the Justice Department website has detailed information on these cases. and the National Council of State Legislatures website, also offer a wealth of information on redistricting plans and pending state-level election laws.

The Backstory
Last summer, Joan Biskupic of Reuters delved into one of the most fascinating and overlooked aspects of Shelby County: the characters and agendas behind it. As she reports, the case dates back to 2008, when the Shelby County city of Calera held municipal elections using a new district map that hadn’t been vetted by the Justice Department (a flagrant violation of Section 5). The result? Calera’s lone black city council member lost his seat. The Justice Department later found that the city’s gerrymandering hurt minority voters and voided the election results, after which the districts were rejiggered again.

The saga might have ended there if it weren’t for a conservative activist named Edward Blum, who happened upon the Calera case on the Justice Department Web site. As Biskupic writes:

A former investment banker, Blum had been challenging race-based policies since 1992, when he lost an election for Congress in a racially drawn Houston district. His case against Texas officials over the line-drawing went all the way to the U.S. Supreme Court, and in 1996 the court ruled the district unconstitutional. Since then Blum, thin, angular, with a formal presence, has sought out government programs that he believes wrongly use racial criteria.

Blum struck up a dialogue with the city of Calera’s lawyer and eventually tapped Shelby County as a test case for challenging the constitutionality of Section 5. Why Shelby County? As it turns out, Blum had initially chosen an Austin, Texas utility district as his stalking-horse plaintiff. But when that case reached the Supreme Court in 2009, the justices punted on the question of Section 5’s constitutionality and instead made it easier for states and municipalities with clean track records (including the utility district) to get out of the preclearance requirement. As Biskupic notes, Shelby County’s record of voting-rights violations—particularly the Calera redistricting ordeal—meant the case “could not get tossed out on the same technicality.” But it also cast doubt on the notion that Section 5 had outlived its usefulness.

Lou Dubose of The Washington Spectator and Janell Ross of The Huffington Post have also done excellent work on the Shelby County backstory.

The Unintended Consequences
Under the Voting Rights Act, minorities living in regions covered by Section 5 are usually concentrated into a handful of districts where they make up the bulk of the electorate. The idea is to ensure that blacks and Hispanics have the critical mass to elect candidates who represent their ethnicity and interests.

But as Shannon McCaffrey and Daniel Malloy of the Journal-Constitution report , in part two of the paper’s Voting Rights Act series, the system has had some unwelcome side effects.

Most importantly, as minorities (who tend to vote Democratic) are shoehorned into designated districts, the surrounding ones become whiter and more Republican—a trend McCaffrey and Shannon maintain has led to political polarization and fed the “sharp partisanship that has tied the nation’s government in knots.”

Politico and Slate have also reported on the downsides of so-called minority-majority districts, and their findings are equally illuminating.


Below are some useful tools and resources for reporters trying to cut through the he-said/she-said verbiage on this issue and shed light on the ramifications of the coming Shelby County ruling.

-Access to the ballot box. The most recent data from Pew Research Center suggests that few Americans of any race have problems casting ballots. Indeed, in Pew’s post-2012-election poll, only 4 percent of whites and 2 percent of blacks answered yes to the question: “Did you have any problems or difficulties voting this year, or not?” As Pew’s director Andrew Kohut explained in a recent Wall Street Journal op-ed:

There were accusations leveled during the 2012 presidential campaign that black turnout was being discouraged in Florida and other key states by voter ID laws or attempts at deception or intimidation. Given these charges, Pew went a step further in the 2012 post-election survey than in previous surveys by asking voters if they knew anyone who tried to vote but could not. Blacks more often said they did than whites—14% versus 9%. But a follow-up question, “Why were those people not able to vote?” revealed that this difference was entirely accounted for by the fact that unlike whites, 6% of blacks reported knowing felons who tried to vote but could not.

The absence of a racial gap in reports of voting difficulties is consistent with a clear and persistent increase in African-American turnout since the mid-1990s. Post-election analysis by Pew and by the U.S. Census indicate that in 2012—for the first time in history—blacks voted at a higher rate, 66% (of age-eligible black citizens), than whites, 64% (of age-eligible white citizens).

Critics of Section 5 see these findings as evidence that the stubborn problem that made Section 5 necessary—minorities being denied access to the polls—has largely been solved, and that the extraordinary federal interference in state affairs is no longer justified.

For a state-by-state breakdown of voter turnout and factors such wait times at polling stations, check out the Pew Election Performance Index .

-Racial attitudes and socio-economic gaps. As part of the current Supreme Court case, a half dozen law and political science professors from universities across the country have submitted a brief comparing recent socio-economic and voting data from regions covered by Section 5 with data from uncovered jurisdictions. Among other things, they found that (1) “negative racial attitudes are more prevalent in covered jurisdictions”; (2) “covered jurisdictions are more likely to adopt vote denial and suppression measures”; and (3) “non-white voters in covered jurisdiction are vulnerable due to socioeconomic disparities.” The document is packed with useful statistics and analysis.

-The Section 2 litmus test. Besides Section 5, the Voting Rights Act includes another safeguard, known as Section 2, which allows minorities and their advocates to challenge discriminatory voting practices by bringing suit after the fact. And, unlike Section 5, it applies everywhere in the country.

Morgan Kousser, a professor of history and social science at the California Institute of Technology, has spent the last four years compiling data on voting rights incidents, including Section 2 cases. While these can be brought anywhere, he’s found that more than 83 percent of successful Section 2 suits arose in jurisdictions that were also covered by Section 5. Ellen Katz of the University of Michigan has unearthed a similar pattern.

Both researchers see these findings as evidence that (contrary to the claims of Section 5’s critics) discriminatory voting practices remain more prevalent in covered jurisdiction than in other parts of the country.

As Kousser wrote in a recent Voting Rights Act series, which ran on Reuters’s blog, The Great Debate, “five-sixths or more of the cases of proven election discrimination from 1957 through 2013 have taken place in jurisdictions subject to Section 5 oversight,” a finding he believes justifies Section 5’s continued existence.

Katz takes the argument a step further, noting that electoral changes in covered regions undergo Justice Department vetting—a system that filters out provisions that would harm minorities and leads to self-policing. “Given these blocking and deterrent effects,” Katz wrote in recent Voting Rights Act symposium on SCOTUSblog, “we should expect to find fewer instances of discriminatory practices in places subject to Section 5 if, as critics of the VRA contend, places like Alabama are truly no different from places like Ohio.” In Katz’s view, the fact there are more instances rather than fewer is a particularly strong sign that voting discrimination is more pervasive in covered regions.
Both the Reuters series, which is curated by Rick Hasen, an election-law guru, and the SCOTUSblog symposium, offer a variety of expert perspectives on the Supreme Court case.

-The self-policing effect. Not surprisingly, the fact that the Justice Department vets voting-system changes has led lawmakers in jurisdictions covered by Section 5 to craft electoral measures with the Voting Rights Act in mind. This can make it tough to gauge just how much impact Section 5 has had since haggling over things like legislative language usually happen behind close doors.

There are, however, some telling exceptions. In 2011, South Carolina passed an ultra-strict voter ID law. The Justice Department found “significant racial disparities” in the way the law would affect voter access, and referred it to the courts for further review. State legislators responded by voluntarily softening the provisions—in particular, they made it easier for people with a “reasonable impediment” to vote without a picture ID.

Last year, a three-judge panel at the District Court in Washington, DC unanimously approved the revised law, saying it “accomplishes South Carolina’s important objectives while protecting every individual’s right to vote.” In a separate concurring opinion , Judge John D. Bates—a George W. Bush appointee—noted that the process showed the “vital function of Section 5” in thwarting “problematic” voting changes. (You can find more information about the South Carolina case on the website of the Brennan Center for Justice.)

Another indicator of how Section 5 plays into closed-door decision making can be found in a 2007 study by Nathaniel Persily, a professor of law and political science at Columbia University. Persily bore into the 800 cases since 1982 in which the Justice Department requested additional information about proposals for electoral-system changes under Section 5. In more than a quarter of them, he found the proposals were withdrawn. While this is a tiny share of the cases that the Justice Department has vetted under Section 5, Persily says it “gives a sense of how many dogs did not bark as a result of the threat of a denial of preclearance.”

Persily’s study also contains a great summary of the evidence Congress collected in the run-up to Section 5’s 2006 re-authorization (all told, it heard testimony from more than 90 witnesses and amassed some 15,000 pages of documents), though determined sleuths may want to consult the congressional record directly.

UPDATE, June 22, 2013: This post has been updated to include a reference to Gary May’s book, Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy. UPDATE, June 25, 2013: This post has been updated to include a reference to the Brennan Center for Justice’s “If Section 5 Falls” report.

Follow @USProjectCJR for more posts from this author and the rest of the United States Project team.

Has America ever needed a media watchdog more than now? Help us by joining CJR today.

Mariah Blake writes for the United States Project, CJR's politics and policy desk. She is based in Washington, DC, and her work has appeared in The Atlantic, The New Republic, Foreign Policy, Salon, The Washington Monthly, and CJR, among other publications. Tags: , , , ,