II. Implications of Loss of Section 5 Protections
We commend this Committee for taking up this important issue at this time. We urge Congress to act expeditiously to restore or replace Section 5. As outlined in If Section 5 Falls: New Voting Implications,[8] a Brennan Center report released shortly before the decision in Shelby County, there is a serious risk that, without the protections of Section 5, jurisdictions could now attempt immediately to put in place discriminatory voting changes by: re-enacting discriminatory changes that were blocked by Section 5; pursuing policies previously deterred by Section 5; implementing changes that were potentially discriminatory but had not yet been reviewed by the Department of Justice; passing new restrictive voting changes; or enforcing previously blocked changes that remain on the books.
The report makes clear that the magnitude of the problem is substantial. The immediate impact of the decision has been to enable jurisdictions to move forward with voting changes — including those that are potentially discriminatory — without Department of Justice or court review. According to news reports, at the time of the Court’s decision the Department of Justice had 276 submissions of voting changes awaiting its review under Section 5.[9] Those changes will now go forward without further review to determine if they are discriminatory.
Unless Congress acts, future discriminatory voting changes will also move forward without review. In the run-up to the 2012 elections, state legislatures passed scores of new laws that would have made it harder for eligible Americans to vote.[10] While most of the restrictive new voting laws were blocked, mitigated, or repealed before the elections, efforts to cut back on voting access continue.[11] In the most recent legislative session (as of April 29, 2013), 28 restrictive voting bills were introduced in states that were covered wholly or in part by Section 5, and two of those bills already passed.[12] To the extent that those bills are discriminatory, Section 5 can no longer function to deter their passage or prevent their implementation.
Another threat in the wake of Shelby County is that jurisdictions may seek to re-enact or implement voting changes that have previously been formally blocked by Section 5. Our report identified, among other things:
- 31 discriminatory election changes had been blocked by the Department of Justice since Congress reauthorized the Voting Rights Act in 2006;[13]
- three examples in the run up to the 2012 election where federal courts denied preclearance to proposed election changes;[14] and
- multiple cases where Section 5 blocked repeated attempts by a single jurisdiction to dilute minority voting strength.[15]
The report further found that some previously blocked voting changes remain on the books, leading to the possibility jurisdictions could begin enforcing them.[16] For example, the report identifies two discriminatory state laws blocked by Section 5 which remain on the books.[17]
Perhaps the largest impact of the Shelby County decision will be the loss of the powerful deterrent effect of Section 5 on discriminatory voting practices. To give a sense of the magnitude of this problem, the report pointed out that:
- 153 voting changes were abandoned between 1999 and 2005 after the Department of Justice requested more information about a jurisdiction’s Section 5 submission;[18] and
- In several cases in the run up to the 2012 election, Section 5 deterred restrictive voting changes, either through more information requests by the Department of Justice, or when officials were first contemplating changes to their election procedures.[19]
These examples only graze the surface of the kinds of voting changes that have been deterred or prevented by Section 5 and that may now move forward more easily. Unless Congress acts, there is a real risk that a significant number of discriminatory voting changes could be put in effect in jurisdictions previously covered by Section 5.
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