To hear some civil rights advocates tell it, the Supreme Court's 5-4 decision in the case of Shelby v. Holder this morning eviscerates the Voting Rights Act. Many who have feared this ruling warn it will prompt state legislatures in the South to run roughshod over minority voter groups by redrawing congressional boundaries to gut minority opportunity districts without any federal oversight, further setting House Democrats back in 2014.
It's true that the Supreme Court's decision to strike down the Section 4 "coverage formula" - the determinant of which states and counties must submit changes to their voting laws and boundaries to the Justice Department for "preclearance" - likely dooms the federal preclearance process altogether. As Election Law Blog's Rick Hasen has concluded, a GOP-led House and a Democratic Senate won't ever agree on which states have a past history of voting discrimination and which don't.
This means that in the future, states with a past history of voting discrimination such as Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia won't have to seek federal approval for their congressional maps every 10 years.
However, while civil rights advocates should be concerned about the case's implications for matters such as voter ID laws, early voting hours, and local polling locations, don't look for immediate practical political implications in the House. There are three reasons the effective end of the Justice Department's preclearance regime won't bring about a wholesale redraw of southern congressional districts in time for 2014, 2022, or beyond:
1) The Obama Justice Department didn't really use Section 5 as a means to block southern maps in 2012 anyway. In 2012, the unprecedented combination of a Democratic-appointed Justice Department and GOP-dominated southern legislatures during a redistricting year created the possibility of an ugly legal clash. Democrats hoped and Republicans feared that the Justice Department would block southern maps that over-packed African-Americans.
Yet the Obama Justice Department, surprisingly, largely took a laissez-faire approach. South Carolina's GOP, for example, drew a new white majority district even though an additional African-American majority district was possible, yet the Justice Department granted preclearance anyway. In North Carolina, Alabama, Georgia, and Virginia, Republicans also over-packed black voters, but again, the Justice Department turned a blind eye.
The major exception was Texas, where the Justice Department denied a GOP-passed map preclearance on the grounds that it diluted Latino voting strength. The denial led a federal court to draw an interim map that created one new Latino majority district in the Dallas-Fort Worth area. But, tellingly, Texas Republicans are now seeking to lock in their 24-12 edge by making the interim map permanent, even after the Supreme Court issued its ruling this morning.
2) Southern Republican legislatures would never want to dismantle minority-majority districts, because they benefit GOP candidates. In theory, southern legislatures could now seek to dismantle several minority-majority districts that routinely elect Democrats. But why would they? Minority-majority districts are the best thing that ever happened to Republicans, because they effectively quarantine Democratic voters into a handful of districts.
The Bush Justice Department's interpretation of the Voting Rights Act during the 1992 round of redistricting led to a proliferation of African-American majority districts across the South. From 1992 to the present day, it's no accident that the partisan breakdown of southern seats has flipped from 96-43 in favor of Democrats to 108-41 in favor of Republicans, with only one white Democrat remaining in the Deep South - Rep. John Barrow of Georgia.
3) Section 2 of the Voting Rights Act is still in place. As the majority opinion in the Shelby case noted, Section 2 of the Voting Rights Act will still prohibit legislatures in all states from "packing" or "cracking" minority voters to cause vote dilution. So, Latino plaintiffs in Texas or African-American plaintiffs in Georgia, for example, could still sue to block any legislative attempt to dismantle minority-majority districts in their states.
This is not as appealing a legal remedy for civil rights groups as the preclearance process. As Democratic attorney and redistricting expert Jeff Wice tells us, Section 2 claims are typically "long and costly" and can't immediately block implementation of a discriminatory map like denial of preclearance can. However, Section 2 remains an important deterrent to legislators who might consider splitting up existing minority districts.
Bottom line: Don't expect today's Supreme Court decision to dramatically alter the current shape of congressional districts or redistricting in the long term. But on other matters such as voter ID laws, early voting, and polling locations, the effective end of the preclearance era could be a different story.
Charlie Cook's Column
A Historic CollapseDecember 9, 2013
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