Section 2 after Section 5: Voting Rights and the Race to the Bottom

By Katz, Ellen D. | William and Mary Law Review, April 2018 | Go to article overview

Section 2 after Section 5: Voting Rights and the Race to the Bottom


Katz, Ellen D., William and Mary Law Review


TABLE OF CONTENTS  INTERODUCTION.                                            1962 I. SECTION 2 AND SECTION 5                                1967 II. BARCKSLIDING.                                         1972 III. THE RACE TO THE BOTTOM                               1981      A.Restrogression's Relevance                         1981      B. The Endowment Effect and the Race to the Bottom.  1984 CONECLUSION                                               1990 

INTRODUCTION

Five years ago, Shelby County v. Holder' released nine states and fifty-five smaller jurisdictions from the preclearance obligation set forth in section 5 of the Voting Rights Act (VRA). (2) This obligation mandated that places with a history of discrimination in voting obtain federal approval--known as preclearance--before changing any electoral rule or procedure. (3) Within hours of the Shelby County decision, jurisdictions began moving to reenact measures section 5 had specifically blocked. (4) Others pressed forward with new rules that the VRA would have barred prior to Shelby County (5)

Shelby County opened a spigot. From it, new electoral restrictions flowed, regulating both how voters cast ballots and the structures in which they cast them. These practices make electoral participation demonstrably more difficult for minority voters and hence were--or would have been--deemed "retrogressive" under the section 5 preclearance regime. (6) Prior to Shelby County, section 5 prevented covered jurisdictions from implementing such retrogressive electoral practices. (7)

In the years since Shelby County, plaintiffs have relied on section 2 of the VRA to challenge those retrogressive electoral practices that section 5 would have blocked. Section 2 proscribes practices that "result[] in a denial or abridgment of the right... to vote," and defines such practices as those that leave minority voters with "less opportunity... to participate... and to elect representatives of their choice" than white voters. (8) This standard has been construed to involve a comparison between the challenged practice and a "hypothetical alternative" of "what the right to vote ought to be," rather than a mandated comparison between a present practice and a prior one. (9)

Courts, nevertheless, have long considered prior practices as part of section 2's "totality of circumstances" review. (10) Specifically, they have treated evidence that a challenged practice diminishes electoral opportunities for minority voters as relevant--though, notably, not dispositive--evidence of legal injury under section 2. (11) A number of courts considering section 2 challenges since Shelby County have continued to engage in such comparisons, treating evidence of backsliding and the relish with which some jurisdictions have engaged in it to be probative evidence of a section 2 injury. (12)

Since Shelby County, this established approach has sparked increasing opposition. A number of states and local governments--both in once-covered jurisdictions (13) and in places where section 5 never applied (14)--have argued that retrogression was a concern under section 5 and section 5 alone, and thus that the backsliding retrogression described is no longer suspect in Shelby County's wake. Under this view, comparing a challenged electoral practice with its predecessor has no place in section 2 litigation. Instead, the equality of opportunity section 2 protects is thought satisfied so long as the challenged practice compares favorably to practices employed in other jurisdictions. More specifically, the disputed practice, no matter how retrogressive, is permissible so long as it is no worse than the most restrictive practice used in other places. (16) After all, the argument goes, why should a state be held liable for making an electoral practice less generous when other states employ that very practice without penalty?

The most direct response comes from section 2's text, its history, and the long-standing precedent construing it. …

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