Rick Hasen notes a trend that I have also observed. In the wake of Shelby County, Republicans have been much more open about the goal of various election laws making it harder to vote–instead of supporting these laws in terms of fraud prevent, they are brazenly saying these laws hurt Democrats:
I also think it is interesting is that there’s been a big shift now in defense of laws aimed at making it harder to make people vote. The old explanation was that these laws were aimed at fraud prevention or public confidence. Now, with the voting rights act involved and claims of racism, the argument is that these laws are aimed at hurting Democrats.
Though, I think it may be helpful to distinguish the different types of election laws being passed, as –redistricting, and laws making it harder for people to vote. The government seems to also recognize this difference. As Rick Pildes and Dan Tokaji noted, the vast majority of VRA preclearance challenges concerned redistricting, not protecting access to the ballot box.
But the reality is that Section 5 was rarely used in this way, at least in its last three decades. Section 5 did not, primarily, function to protect access to the ballot box. Instead, the overwhelming uses of Section 5 were to ensure more majority-majority election districts or to stop at-large election systems and other practices believed to weaken minority voting strength. Some of these uses, especially the compelled creation of majority-minority election districts, are more controversial (even among conventional “liberals”) than are robust protections for access to the ballot box. Yet in practice, Section 5 was used primarily for redistricting and other matters of vote dilution rather than protecting the right of eligible citizens to cast a vote.
Going forward, these two approaches to electoral control will probably be treated differently. Redistricting to suppress the party out of power is, ostensibly no different from what happens in states throughout the country. But laws that limit access to the polls are disfavored everywhere. As a polity, we should strive for more people voting, not less.
Yet, redistricting can have a much stronger impact on ballot access–it’s just hidden. By structuring districts in a certain way to maximize or minimize certain voters, lots of polling stations become irrelevant–at a far greater import than a Voter ID law, or by curbing early voting.
Update: More from Rick Pidles and Dan Tokaji:
But our point is that it is precisely this reality that reveals the limitations of the Section 4/5 regime – and suggests that we should concentrate on measures designed to improve access more broadly. Section 5 wasn’t designed to be a major bulwark against partisan manipulation of access to the vote.
Moreover, Section 5’s race-based standard didn’t make partisan manipulation itself illegal, except in places where partisan restriction on access closely correspond to race in particular ways that Section 5 doctrine had not sorted out clearly yet. Partisan manipulation of voting rules isn’t limited, of course, to covered jurisdictions. Nor – when partisan political competition is driving these laws – is it plausible to imagine devising a coverage formula that can adequately predict where those restrictions will arise tomorrow, much less ten or twenty years from now. And precisely because these laws are arising from partisan political pursuit of self-interest, Section 5’s efficacy might well have depended on who happened to control the levers of power in DOJ. While Section 5 may have “worked” from the perspective of liberals in a few very recent, high profile cases, comparable restrictions on access were approved during prior Republican administrations.
While lingering disagreements at the margins over what the data prove are inevitable, the important question is whether better means exist by which to protect against new unjustified barriers to voting, and even to expand access. We think there are means outside the Section 5 model that are not only more effective in today’s circumstances, but also more politically viable and more likely to be upheld as constitutional. These include, to name just a few, expanded voter registration, federal provision of easily available voter ID to eligible voters, greater disclosure, and state constitutional lawsuits. At this point in our history, thinking beyond the model of Section 5 is likely to generate the most effective and widespread protections for the right to vote.
In other words, supporters of access to the ballot must look beyond race and section 5.