Court decisions show new approach to voting rights cases

Three years after the U.S. Supreme Court struck down core elements of the Voting Rights Act, critics of Republican-led efforts to change voting laws in key states are scoring a new round of victories in courts across the country. 

{mosads}The wave of favorable decisions, both proponents and opponents say, illustrates a new approach voting rights advocates are taking in court.

In 2013, the Supreme Court ruled that a part of the Voting Rights Act laying out criteria under which states could be required to seek approval prior to changing voting laws was outdated. The decision effectively rendered moot Section 5, which required states fitting that criteria to seek approval from the Justice Department or the D.C. District Court prior to changing election laws.

In effect, voting rights advocates worried, the Supreme Court had shifted the burden of proof from the states, which previously had to show their proposed changes would not discriminate against minority voters, to the voters themselves, who would now have to show their rights were infringed upon.

But recent decisions from federal courts show voting rights advocates are taking a new approach to litigation over voting rights cases — and it’s an approach that seems to be working.

In just the past two weeks, state and federal district and circuit court judges have struck down voter identification laws and other measures changing voting rules in North Carolina, Kansas, Wisconsin and Texas. Earlier this year, a federal district court also ruled against a plan to curtail early voting in Ohio.

Each case challenged existing law under Section 2 of the Voting Rights Act, which prevents states from implementing practices or procedures meant to deny or abridge someone’s right to vote on the basis of race.

“What we’re seeing now out of Texas, Wisconsin and North Carolina is an evolution of the Voting Rights Act,” said Michael McDonald, a political scientist at the University of Florida who has testified as an expert witness in voting rights cases. “Plaintiffs are now having to use Section 2 as a way to overturn laws that would have likely been prevented from going into effect because they would have failed to earn pre-approval under Section 5.”

The Fifth Circuit Court of Appeals decision overturning Texas’s voter identification law, issued last month, serves as an example of the new strategy, said Deborah Archer, director of the Racial Justice Project at the New York Law School. Texas fit the criteria for pre-clearance oversight laid out in Section 4 of the Voting Rights Act, and when the state legislature passed the voter identification law in 2011, the Justice Department blocked its implementation. Once the Supreme Court nixed Section 4, in a case known as Shelby County v. Holder, Texas implemented its law.

Opponents of the Texas voter identification law returned to court after the Shelby ruling, this time challenging the law under Section 2. The 5th Circuit agreed that the law placed a disproportionate burden on minority communities and ordered Texas to work with voting rights advocates to allow more exemptions.

Archer, a former counsel for the NAACP Legal Defense and Education Fund who argued in voting rights cases, said the new approach can work, though the burdens on voting rights advocates are far higher than challenges under Section 5 had been. What’s more, the cases require a level of proof Section 5 challenges did not.

“Section 2 cases are very time and resource-intensive to win. The litigation is quite expensive,” Archer said. “Section 2 litigation can only come into play after discriminatory voting schemes are already in place and thousands of voters have already been denied their right to vote.”

Jessica Ring Amunson, a co-chairwoman of the Election Law practice at the D.C. law firm Jenner & Block, said the higher costs for litigating a Section 2 case makes it crucial for voting rights advocates to marshall their resources.

“The major asymmetry here is that while the states litigate with virtually unlimited resources using taxpayer dollars, voting rights advocates must litigate on their own, in the hopes that they may eventually be awarded their fees and costs if they prevail,” Amunson said in an email. “This means that, with limited resource, voting rights advocates must choose their battles carefully and thus are likely to pursue only the most egregious cases.”

Those who favor voter identification laws say the Section 2 standards are appropriately high, because the Constitution gives the states the power to decide their own voting rules.

“Section 2 of the Voting Rights Act has a higher legal standard than Section 5 did,” said Hans von Spakovsky, a conservative legal scholar at the Heritage Foundation. “It is the appropriate standard when reviewing election procedures given the Constitution’s delegation of that power to the states.”

Both supporters and opponents of voter identification laws say the standards under which Section 2 is applicable remains an open legal question — one that represents a new front in the wars over voting rules, and one that can only be settled by the Supreme Court.

“The plaintiffs in these [recently decided] cases are trying to persuade judges to convert the Section 2 standard into the much lower Section 5 standard, and they are being successful in doing that,” von Spakovsky said. “Which raises profound constitutional questions about the legitimacy of Section 2 if this occurs.”

The Supreme Court ruled against Section 4 in a 5-4 decision authored by Chief Justice John Roberts, joined by the court’s four conservatives. During oral arguments, Kennedy asked whether Section 2 challenges could be brought if Section 4 was struck down — a sign, some voting rights advocates say, that Kennedy could side with the four liberal justices if some of the recently struck down laws are appealed to the high court.

“Whether or not this is a correct interpretation by the lower courts is still outstanding,” McDonald said. “I think this is all heading to the Supreme Court. They have a responsibility to answer these questions, to give the lower courts guidance.”