Section 2 as an alternative to Section 5

​This is the fifth in a series about the oral argument in Shelby County v. Holder.

​There are several moving parts involving the Voting Rights Act even in the limited dispute before the Court. Some states must seek preclearance under Section 5 before making any election law-related changes. But there are several different ways that states can fall under the preclearance regime. The formula at dispute in this case, Section 4(b), requires jurisdictions that failed certain voter registration or turnout benchmarks (held up against results of, most recently, the 1972 election) would be required to preclear changes.

But there are other ways states can become covered jurisdictions. One, for instance, is Section 4(f)(4), which requires jurisdictions with a certain foreign language-speaking population to be covered.​

And another is Section 2 via Section 3, which allows ​for a lawsuit to get a non-covered jurisdiction covered (a kind of "bail-in" mechanism). If the government can establish that a jurisdiction has denied voters on the basis of race, then the jurisdiction can become a covered jurisdiction.

Additionally, Section 2 does something else altogether. It allows for a lawsuit to stop a election law-related change in an non-covered jurisdiction. Because non-covered jurisdictions are not required to preclear changes, there is a mechanism for litigating potentially improper new election laws and regulations.

Good so far? Here's one problem after oral argument.​

​Section 2's lawsuit provision to contest non-covered jurisdictions does a lot of the things that Section 5 does--but obviously, it does not do everything. And after oral argument, some expressed concern that the Court was inclined to find that Section 2 was an adequate safeguard if jurisdictions otherwise covered under Section 4(b) were no longer covered.

Charlie Savage in the New York Times,​ expounded upon by Rick Hasen, addressed this point, as did others in the briefing of the case. But after the oral argument, I'm not convinced that this is exactly the Section 2 argument being made.

In particular, I'm not convinced that this Section 2 point made by Justice Kennedy is the one that's more salient in the analysis. Granted, Justice Kennedy raised the issue and noted "it's not clear to me that there's that much difference in a Section 2 suit now and preclearance," but followed with "I may be wrong about that. I don't have statistics for it. That's why we're asking." And Attorney General Donald Verrilli followed with a less-than-satisfactory answer (at least, I imagine, from Justice Kennedy's perspective), that petitioners "haven't made any effort to" demonstrate that point, and that he didn't "have any statistics for you."

I think there's a strong case to be made (and has been made by some) that Section 2 "plus" is not "as good as" Section 5, but Justice Kennedy was, I think, at least genuinely inquiring (or, I'm inclined to give him the benefit of the doubt that it was a genuine inquiry), and Mr. Verrilli did not have a strong retort (as right as he might have been that petitioners failed to present adequate evidence).

But, that aspect aside, there are repeated instances in which Justice Kennedy articulated the point that Section 2's bail-in mechanism would provide a much more credible basis for Section 5 preclearance. And this is consistent with the theme of the case--that is, the preclearance formula in Section 4(b) is improperly tailored; that it will be struck down for a lack of findings by Congress that it was necessary; but, that the bail-in mechanism of Section 2 via Section 3, which requires individualized litigation by the Government and individualized findings of fact before preclearance applies, etc., would work quite well. Justice Kennedy twice mentions Section 3 in the context of Section 2 (Tr. at 24, 54); and, in fact, he's the only one who raises Section 3 in the transcript (at least, by my search function).

So, perhaps Justice Kennedy (and a majority of the Court) will rely on Section 2 as an adequate basis to enforce the protections otherwise afforded by Section 5, but I think the Court would be more inclined to focus on the coverage formula, and, in doing so, would be more inclined to rely on Section 2 and Section 3 as an alternative basis for a coverage formula. While it may also acknowledge that Section 2 "plus" provides remedies, shall we say, "comparable to" (if not "as good as") the existing Section 5 in covered jurisdictions, I don't think that's the thrust of Justice Kennedy's concern.

But, again, perhaps I just have a more generous reading of the transcript. And perhaps I'm simply less inclined to over-read conclusions into the oral argument as a whole, anyway.

A version of this discussion was originally emailed to the Election Law Listserv.