The Voting Rights Act lawsuit plaintiffs from Shelby County, Alabama, and many of the Republican legal and political class who support overturning the VRA, need to take a step back and briefly consider the adage: “be careful what you wish for, ’cause it might come true.”
The United States Supreme Court heard oral arguments for and against the Shelby County case on Wednesday. The complaint challenges the constitutionality of parts of Sections 4 and 5 of the 1965 Voting Rights Act that Congress last renewed for a 25 year period in 2006.
Based upon the Justices’ questioning of the participants plus their recent past rulings and writings about the Voting Rights Act, the Shelby County plaintiffs have a reasonable chance for victory but not without unintended consequences. For it is unlikely that the petitioners and vocal Republicans who support overturning the VRA want the Democratic Party to regain control of southern state legislatures and re-assume majority status in the House of Representatives. Yet, such a result will almost assuredly happen.
The case’s main tenet attacks the Act’s outdated “triggering mechanism.” When the legislation was first enacted in 1965, jurisdictions that saw a voting age population turnout falling below the 1964 presidential election standard were placed under VRA supervision.
During the Nixon administration, the VRA was amended to designate 1968 and the then-upcoming 1972 as triggering presidential elections. Such is the last time Congress altered the criteria, which is the basis of Shelby County’s complaint. Their local election officials argue that 40-year-old political data is not representative of the region’s contemporary electoral status.
The government contends that because the legislation contains what is known as a “bail-out” procedure, a remedy to their complaint already exists. Several jurisdictions have successfully used the bail-out procedure to remove themselves from VRA jurisdiction in past history; Shelby County has never attempted to obtain such consideration.
But it is the tangential effect of what will happen if Section 5 is gutted that will likely change the face of American politics for the long term. The Voting Rights Act, through Section 5, which requires affected jurisdictions to obtain US Justice Department “pre-clearance” for all election code changes, does not invalidate or strike down any state law. Instead, it declares that the particular law is constitutionally unenforceable. If Shelby County succeeds with their argument that the 40-year time period from the last triggering election is cause to invalidate parts of VRA Sections 4 and 5, then all of the laws previously ruled as unenforceable will suddenly take effect.
Let’s use the state of Florida’s current congressional map as an example of what could happen in the various VRA jurisdictions over the course of time. As you may remember, Florida’s political maps are the subject of legal challenges to a 2010 voter-passed redistricting initiative. If the lawsuits receive a favorable judgment — a strong likelihood if the Supreme Court sides with Shelby County — all of the Sunshine State maps will be re-drawn before the 2014 election.
Included in the Florida ballot proposition is a county-line provision. This means that county lines can only be broken if necessary to obtain the legally proscribed population volume. If such becomes the drawing criteria, then two of the state’s three African-American districts would likely disappear. Rep. Corrine Brown’s 5th District, which has traditionally encompassed parts of Jacksonville, Gainesville, and Orlando, would no longer be allowed because it breaks several county boundaries. It is likely that the seat could be drawn wholly within Duval County, with the Gainesville and Orlando portions of her current district going to Republican seats, which would be enough to turn some area seats from red to blue. The likely winner of a wholly contained Duval County seat would not likely be Corrine Brown or an African-American Democrat, but rather a white Democrat.
Rep. Alcee Hastings’ 23rd District in South Florida would likely fall victim to a similar situation, as his seat now contains parts of Miami-Dade and Broward Counties.
At later times, county line laws and other statutes that are today moribund because of Section 5 — Justice Sonia Sotomayor pointed out to the Shelby County plaintiffs that 240 such election laws would come into effect just in their own jurisdiction — would suddenly come alive and, to a large extent, control the quick redrawing of state legislative lines in virtually every southern state. In the next redistricting, more favorable Democratic legislatures will then draw new congressional lines, meaning a Democratic majority will again become the norm and political configurations similar to those we saw in the 60s, 70s, and 80s will again dominate the political landscape.
But, a Democratic US House majority might come more quickly than 2022. In Florida and Texas alone (their set of interim maps would be immediately be re-drawn if Shelby County wins) enough seats could trade hands to bring the Democrats to power as soon as the 2014 election.
Has the Voting Rights Act become obsolete? The overall numbers of minority US Representatives suggest that it has not. African Americans have 41 seats in the House, but that is still 26 percent under their share of the total population. Hispanics and Asians are both more than 40 percent under-represented.
The Supreme Court will announce its Shelby County ruling in mid to late June. If the plaintiffs win, the 2014 election cycle will greatly change, as will all future electoral politics. Expect a 5-4 vote, but who will have the five?