Elections Without Section 5?

Yesterday's U.S. Supreme Court decision in the case of Northwest Austin Municipal Utility District v. Holder is being kicked around today all over the news media and (undoubtedly) in law schools. With many observers expecting a closely divided Court to strike down Section 5 of the Voting Rights Act (which requires most of the former Confederacy and a few other jurisdictions to secure Justice Department "preclearance" of election procedure or district mapping changes) as unconstitutional, it instead chose, on an 8-1 vote, to decide the case on narrow statutory grounds while making it clear that Section 5 requires immediate repair by Congress.

In 2006 Congress extended Section 5 along with the rest of the Voting Rights Act for another 25 years on a unanimous vote in the Senate and a 390-33 vote in the House.

But more than likely, Section 5 as we've known it is doomed, as renowned Supreme Court reporter Linda Greenhouse explained this morning at Slate:

[T]he notion that Congress can be enlisted to avoid this looming constitutional showdown by readjusting Section 5's geographic coverage is completely unrealistic, as anyone familiar with the history of the 2006 extension has to know. The decision in Congress not to revisit the existing list of covered jurisdictions was a very deliberate one—made because everyone knew that the extension effort would get hopelessly bogged down if that can of worms were opened.

This matters to non-lawyers mainly because Section 5 has had a profound impact in recent decades on both election procedures and on redistricting, and the Supremes are tinkering with the rules in this and another recent case on very the brink of the next redistricting cycle.

The simplest way I know to demonstrate the importance of Section 5 on redistricting is to look at the composition of the U.S. House delegation in my home state of Georgia.

Going into the 1992 cycle, Georgia had nine Democrats (eight of them white) and just one Republican in the House. Republicans formed a de facto alliance with civil rights activists to utilize Section 5 review to boost the fortunes of both the GOP and of African-American Democrats through "packing" of black voters into districts sure to elect a black representative, and "bleaching" of adjacent districts likely to elect Republicans. After a protracted battle with the Justice Department and rejection of two state plans, Georgia finally got a definitive redistricting plan prior to the 1994 elections, and sure enough, that produced a delegation composed of eight Republicans and three Democrats (all African-American).

In the most recent round of redistricting, the GOP-civil rights alliance broke down, and Section 5 review encouraged the creation of "minority influence" or "crossover" districts instead of "packing" and "bleaching." After the 2002 elections, despite a major shift towards the GOP in statewide races, the Georgia House delegation had eight Republicans and five Democrats (including four African-Americans), and shifted to a mere 7/6 Republican advantage in 2004 (with a second white Democrat winning office).

Yes, other things were going on during those ten years, but redistricting under the discipline of Section 5 was a huge factor in these massive gyrations in party control.

Aside from yesterday's ruling, the Supreme Court decided in March (Bartlett v. Strickland) that creating "minority influence" or "crossover" districts could not be required via lawsuits under Section 2 of the Voting Rights Act, creating some fears among Democrats that the next round of redistricting in the South could see a return to the "packing" and "bleaching" practices of the 1990-92 era. Now the whole process is under a cloud. It's possible that more active litigation under Section 2 would replace some of the restraints imposed by Section 5 over the years, but obviously the "preclearance" requirement was especially powerful.

The most obvious implication is that party control of the redistricting process through victory in 2010 state legislative and gubernatorial contests is more important than ever. The federal courts already grant states considerable leeway in redistricting decisions that involve anything other than purely racial considerations political gerrymandering, for example, has been given an almost total green light). If Voting Rights Act review declines in importance, and Section 5 goes away, then more than ever, to the victor will go the spoils.