Post Shelby County, What Happens Now?

 

I’ve been asked offline by a number of people what will the DoJ’s likely approach be to cases now that Section 4’s formula has been thrown out. There is nothing I like more than speculation*, so here goes…

The SCOTUS decision in Shelby County v. Holder threw out the Section 4 formula which made a blanket determination of which geographical areas fell under Section 5’s preclearance requirement.

Cases currently under DoJ preclearance review:

If the Department of Justice is examining the case because it is in a jurisdiction covered by the VRA because of the section 4 formula, it is likely that DoJ has lost the ability to dictate the result. This would likely be the situation in Macon, Georgia, involving their change to non-partisan elections. Those elections were awaiting a DoJ decision since June 3rd, and had to push back their July election date because of it. They can likely schedule that at will, subject to a court challenge by affected groups.

Moving Forward, what will the DoJ do? How will they enforce the VRA provisions without section 4? 

Two ways:

1) DOJ will seek to compel submission of planned changes well in advance of those changes taking effect, based on their ability to maintain direct actions under Section 2 of the Voting Rights Act.

They will update and modernize their “formula” (without calling it that) in order to provide guidance and review of pending changes.

2) If problem jurisdictions fail to comply, they will likely seek to “bail-in” jurisdictions back into preclearance.

And this is where things get exciting. There are a number of jurisdictions that fall under VRA preclearance requirement that are not there because of the Section 4 formula, and they primarily got there through the bail-in provision of Section 3 (which was there to address “pockets” of discrimination), in which DoJ sues the government subdivision in question to have a federal court declare that due to their past behavior and/or discrimination, they warrant the extra supervision.

DoJ could theoretically go after each and every jurisdiction they see as problematic in an attempt to recreate the map that just got thrown out.

 

 

*However, the above is entirely accurate.

 

 

 

7 comments

  1. bucky says:

    Question: what effect will this have on the staffing levels at he DOJ’s voting rights division? Without hundreds of preclearance submissions coming in annually, won’t they be overstaffed? Also, Stefan, how will DOJ force prior submission, especially given that lots of towns and counties now no longer have to even inform them of those changes?

    • Stefan says:

      So DOJ might be understaffed now, actually. Preclearance is actually a relatively easy process companred to actually litigating these cases in federal court.

      Which goes to your second question: How will DoJ force prior submission? When I said “seek to compel” I meant not that they would demand, because they can’t but they would threaten injunctions using Section 2 to attempt to obtain advance notification.

  2. Joseph says:

    Stefan – the Court specifically stated -Congress- would / could redefine the formula, not the DoJ. This ruling in-effect says there are no current jurisdictions subject to Section 5 preclearance. This was a much bigger decision in my mind than what Shelby initially called for, which was to toss out preclearance. It’s doubtful with a split-Congress, any new formula will be passed.

    Justice Thomas went on to say he though Section 5 was also unconstitutional, but the majority-opinion only rendered Section 4 out.

    All of the other sections that apply to ALL States stay in. Like – no literacy tests, etc etc to access the polls.

    • It may seem hard to imagine Congress doing this right now, but a lot can change in two or four years. Including the Republicans on the Supreme Court – the crazier you guys get the easier it is to see the filibuster rule tossed by the Democrats in the Senate. It’s not beyond the realm of possibility at this point (again not saying it will happen) to see Hillary win and usher in a Democratic majority in the lower house.

    • Stefan says:

      Joseph – Yes, Congress clearly is the only one who could produce a Section 4 qualifying formula, but DoJ can make rules and regulations for what they see as being a free and fair election and then seek to bail-in jurisdictions who fall beneath the new standard. We aren’t disagreeing.

  3. greencracker says:

    In lieu of a formula, ugh, this is going to be mountains and years of litigation. Just speaking of Macon-Bibb move to nonpartisan July elections, DOJ tossed that similar (not identical) case in Augusta-Richmond last year. If there were any Macon-Bibb Democrat machine with money, ohhh, I could see a Section 2 lawsuit and Augusta-Richmond would be the leg they’d stand on.

    Tee hee, if somebody now did bring a Section 2 suit, would the election have to be put on hold till the case is settled?

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