On Tuesday, November 19, 2013, the Rose Institute of State and Local Government held a panel discussion on the Voting Rights Act after the Supreme Court struck down key provisions in Shelby County v. Holder.
The Institute was fortunate to have two voting rights experts on the panel: Bruce Cain, distinguished political scientist and director for Stanford University’s Bill Lane Center for the American West, and Marguerite Leoni, partner at Nielsen Merksamer Parrinello Gross & Leoni L.L.P. specializing in election law and a Rose board member. Professor Ken Miller, Associate Director of the Rose Institute, moderated the discussion. The panel covered central issues in the Shelby County decision and also discussed the future of voting rights legislation and court action in the United States and especially here in California.
The panel began with a summarized history of the Act, covering its Reconstruction foundations, original enactment in 1965, and renewal up until the 2013 Supreme Court decision. Ms. Leoni highlighted the Act’s expansion from merely targeting disenfranchised blacks in the south just after the civil rights movement to later years, when it included language minorities and immigrant populations. She noted that with this expansion come challenges and unintended consequences, citing Merced County’s inadvertent coverage and requirement for preclearance simply due to its large, on-base military population.
Professor Cain referred to many of the statistics cited in the Roberts opinion, and argued that the nation truly had changed—that all parties involved agreed that voting rights were better protected now that in 1965 because of the Act. But as for the question of whether we still need to Act, Prof. Cain emphasized, “We don’t know the counterfactual.” Most interestingly, even if we still need the Act to help preserve voting rights, he noted that the political will simply does not exist on either side of the aisle to reenact a new coverage formula.
With bleak odds for an updated coverage formula, Ms. Leoni expects litigation for section 2 violations—a section that withstood the Shelby decision—to evolve. This section now becomes the crux of enforcement in jurisdictions that were once covered by the invalidated section 4(b). She expects the Justice Department to become more aggressive in its use of section 2 and to test new strategies in using section 3. Moreover, she expects states to enact their own voting rights acts. California enacted its state Voting Rights Act in 2003, and there will most likely be more to come.