What Will Happen to Section Two of the Voting Rights Act?

In a speech today, Attorney General Holder announced that he has “directed the Department’s Civil Rights Division to shift resources to the enforcement of Voting Rights Act provisions that were not affected by the Supreme Court’s ruling – including Section 2.” Section 2 of the Voting Rights Act is the one that nationwide forbids voting practices that have a discriminatory effect. (Exactly how to find such an effect is the subject of a ton of complicated doctrine.)

There was a time when Section 2 was constitutionally controversial. The Court has said that the Constitution is only violated when a voting practice has a discriminatory intent, but Section 2 (which was enacted in its modern form in 1982) sweeps far more broadly, and many violations of Section 2 today are proved without a showing of discriminatory intent. This has led some to question whether Section 2 exceeds Congress’s enumerated powers or violates the 14th and 15th Amendments by effectively forcing legislatures to place too much weight on race in, for example, drawing district lines. Indeed, the Court has repeatedly construed Section 2 narrowly out of concerns about its constitutionality (e.g., in Bartlett v. Strickland; Miller v. Johnson, and various opinions in LULAC v. Perry). These views are also discussed (and criticized) by Chris Elmendorf and Luis Fuentes-Rohwer.

So a natural question to ask is, after Shelby County, is Section 2 next on the chopping block? Neither Shelby County nor Northwest Austin said much of anything about Section 2. They didn’t explicitly call it into question, but they also didn’t emphasize that it was an example of appropriate legislation, nor did the Court say anything like “preclearance is especially unnecessary in light of Section 2.” Instead both cases just said flatly that Section 2 “is not at issue in this case.”

I could see this going either way. On one hand, Shelby County demonstrates a willingness to strike down pieces of the Voting Rights Act as exceeding Congress’s powers and some of the rhetoric could certainly be put to good use in a challenge to Section 2. On the other hand, as a practical matter the Court might not be willing to strike down both operative pieces of the statute. And one of Justice Kennedy’s complaints in the past has been about the conflict he sees between Section 2 and Section 5– see his concurring opinion in Georgia v. Ashcroft, which was quoted in Northwest Austin. If Section 5 ends up gone or totally transformed, there’s no conflict anymore and that may alleviate some of his concerns about Section 2. If Shelby County ends up saving Section 2, it would be an interesting irony.