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.