Section Two Minus Section Five

06/26/2013 05:17 pm ET | Updated Aug 26, 2013

In a dramatic decision yesterday, the Supreme Court essentially obliterated one of the two pillars of the Voting Rights Act. The provision at issue, section 5 of the Act, had required certain jurisdictions, mostly in the South, to receive federal approval before changing any of their election laws. According to the Court, Congress overstepped its bounds when, in 2006, it renewed its formula for determining which areas were subject to the preapproval requirement. Congress's formula was obsolete, in the Court's view -- "based on decades-old data and eradicated practices" -- and no longer captured the places with the worst records of discrimination.

With the effective demise of section 5, the Act's other pillar, section 2, assumes even greater importance. While section 5 banned policies that reduced the electoral power of minorities, in covered areas only, section 2 forbids practices that "dilute" minority voting strength anywhere in the country. Unfortunately, section 2 is a poor substitute for section 5. Both procedurally and substantively, the protections it offers to minority voters are weaker. With respect to redistricting in particular, according to my research, about 150 districts safeguarded by section 5 now lack any protection under section 2.

To begin with, the burden of proof under section 5 was on the jurisdiction that wanted to amend one of its election laws. Unless the jurisdiction could prove that its amendment would not make minorities worse off, the amendment would not go into effect. Under section 2, in contrast, plaintiffs are responsible for demonstrating that unlawful vote dilution has taken place. And while their lawsuits work their way through the courts, jurisdictions typically are free to implement the disputed policies.

Thanks to these procedural differences, minorities have had better luck challenging voting restrictions under section 5 than under section 2. Last year, federal courts relied on section 5 to block laws in Texas and South Carolina requiring people to show photo IDs in order to vote, as well as cutbacks to early voting in Florida. By comparison, no plaintiffs yet have prevailed in section 2 suits involving photo ID laws. Courts generally have concluded that the plaintiffs failed to establish either causation or a disparate racial impact.

The story is similar with redistricting -- the issue that has accounted for the vast majority of activity under both sections 2 and 5. Under section 5, districts were legally protected as long as their minority residents were able to elect their preferred candidates. Districts enjoyed protection even if their boundaries seemed strange or if their minority populations were socioeconomically varied or fell below fifty percent.

Under section 2, however, the kinds of districts that can be won in litigation are much more limited. In a series of 1990s cases, the Court held that the formation of bizarre-looking districts is not required by section 2. In 2006, the Court declared that districts whose minority populations are highly diverse are not mandated by the provision either. And in 2009, the Court concluded that minorities can succeed in a section 2 challenge only if they are numerous enough to constitute an outright majority in a district.

How many districts fall into the gap between sections 2 and 5 -- and thus may now lawfully be dismantled? My research identified 404 state and federal districts that until yesterday were safeguarded by section 5. Of these, only a small number (22) are as odd-looking as the districts invalidated by the Court in the 1990s. A similarly small number (17) have minority populations below fifty percent, but still reliably elect minority-preferred candidates. In these respects, most districts that formerly were protected by section 5 are still protected by section 2.

But the gap between sections 2 and 5 is more like a chasm when it comes to the diversity of districts' minority populations. The minority residents of 146 districts are more socioeconomically varied than were the members of a Texas district struck down by the Court in 2006 for this very reason. States presumably are free now to eliminate these districts. If they do so, minority representation in the South will be gravely undermined.

Of course, states may decide not to eliminate these districts. The Republicans who run most southern states often are happy to preserve minority-heavy districts, because by doing so they are able to "pack" Democratic voters into just a few constituencies. That many current districts are unprotected by section 2 also does not mean that districts compliant with the provision could not be drawn in the same areas. It often may be possible, for example, to tweak existing districts so as to make their minority populations more homogeneous.

Still, there can be little doubt that the Court's decision sets the stage for major setbacks in minority representation. With respect to both voting restrictions and electoral districts, section 2 simply is a less effective tool than section 5. If these setbacks are to be avoided, it is imperative that Congress act quickly to replace the stricken provision. Section 2 alone is not enough.