Flip-flopping

Flip-flopping conservatives take aim at another key provision of the Voting Rights Act

By Zachary Roth

Last summer, the Supreme Court invalidated the Voting Rights Act’s (VRA) most powerful provision, known as Section 5. In the wake of that ruling, msnbc reported on signs that the right would next set its sights on the landmark civil rights law’s other key pillar, essentially rendering the VRA a dead letter. That assault is now officially underway—just in time to stymie several high-stakes challenges to voter ID laws.

Two leading conservative legal activists argued in a memo published this week by the Heritage Foundation that the provision at issue, Section 2, should be construed so narrowly that it would be able to stop only the most blatant forms of racial discrimination in voting. But the memo, written by Heritage’s Hans von Spakovsky and Roger Clegg of the Center for Equal Opportunity, may aim to lay the groundwork for an even more far-reaching claim: The prominent election law scholar Rick Hasen, no alarmist on voting rights, described it as a step “on the road to arguing for the unconstitutionality of Section 2.”

“Now that Section 5 is essentially gone, it is time for the attack on Section 2,” Hasen added.

Section 2 bars racial discrimination in voting. It’s currently being used by the Justice Department to challenge Texas’ voter ID law and North Carolina’s sweeping and restrictive voting law. It’s also being used by civil rights groups to challenge Wisconsin’s voter ID law. In a proposed 2015 budget submitted to Congress this week, the Justice Department said it would “place major emphasis going forward on affirmative enforcement of Section 2 of the VRA”—a sign of the provision’s crucial role in stopping race bias in voting, now that Section 5 is no longer in force.

Since Congress amended it in 1982, Section 2 has barred not only voting laws that are intended to discriminate against minorities, but also those that have the effect of discriminating. That’s largely because, these days, very few people in power explicitly declare an intention to racially discriminate, so a law that banned only intentional discrimination would be virtually useless.

In the key section of their memo, Spakovsky and Clegg claim that the 1982 amendment “raise[s] significant constitutional issues.”

“The [14th and 15th Amendments to the Constitution] ban state disparate treatment on the basis of race but not a mere disparate impact on that basis,” they write. “Since Section 2 of the Voting Rights Act purports to prohibit state action that has a racially disproportionate ‘result’ or ‘effect’ (disparate impact) but did not stem from a racially discriminatory ‘purpose’ or ‘intent’ (disparate treatment), Congress, by enacting this provision, arguably exceeded its enforcement authority …” 

To be sure, Van Spakovsky and Clegg say Section 2 can be interpreted in a way that’s constitutional. To do so, those using it to challenge a voting law must be made to show a “close nexus between the practice in question and actual disparate treatment (an action taken for a discriminatory purpose) …” In other words, there must be evidence of deliberate racial discrimination somewhere in the mix.

This might all sound like legal minutiae, but it’s already having an impact in the fight over voter ID. 

As msnbc reported last month, in defending their strict voter ID law, Texas officials have made a version of that argument: Essentially, the law’s challengers must prove it was deliberately designed to hurt blacks and Latinos, not just that it has the effect of doing so. (Of course, Texas also is dragging its heels about handing over the emails and other records that the plaintiffs might use to prove deliberate discrimination, but that’s another story.)

If the Supreme Court accepted that argument, it would likely mean Section 2 couldn’t be used to stop most voter ID laws or the kinds of cutbacks to early voting that some states have recently enacted—even though those moves clearly affect minorities disproportionately.

And at least one key justice might be very sympathetic to the argument. As a young lawyer in the Reagan Justice Department, John Roberts wrote a memo saying that broadening Section 2 to cover laws with discriminatory effects would “raise grave constitutional questions.” And as The New Yorker’s Jeffrey Toobin recently reported, Roberts has signaled deep skepticism about the “effects” standard in discrimination cases more broadly.

The campaign against Section 2 represents a glaring strategic flip-flop for the right—and perhaps for von Spakovsky himself. In the wake of the Shelby County ruling that invalidated Section 5, he and other conservatives loudly argued that there was no need to revive Section 5’s system of federal supervision of certain jurisdictions, because Section 2 still stood, and was so strong.

“The ‘heart’ of the VRA today is Section 2, not Section 5” von Spakovsky assured lawmakers in testimony last July. “Section 2 applies nationwide, not just in a limited number of states and counties, and it is permanent; it will never expire.”

Another conservative voting lawyer, Michael Carvin, also proclaimed the power of Section 2 at that time, taking the argument even further than Spakovsky.

“If Section 2 broadly and effectively precludes all actions with a discriminatory ‘result’—as it does—there is simply no need to supplement this effective antidiscrimination law with the burdensome preclearance requirement,” Carvin said in his own testimony.

Now, of course, the notion that Section 2 “precludes all actions with a discriminatory ‘result’” appears to no longer be operative . And America’s most successful civil rights law’s single most effective remaining tool for stopping racial discrimination in voting could soon be in the crosshairs.