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?
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.