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By Tharuni Jayaraman
Thursday night was a busy night in the voting rights world. Just before 9:00 PM EST, District Court Judge Ramos, in Veasey v. Perry, enjoined Texas’ photo identification law, SB 14. She held that the law (1) “creates an unconstitutional burden on the right to vote,” (2) has an impermissible discriminatory effect against Hispanics and African-Americans, and (3) was imposed with a discriminatory purpose.” Furthermore, as emphasized by Justin Levitt of Election Law Blog, Judge Ramos will also be considering the plaintiffs’ request for a “bail-in” order under Section 3(c) of the Voting Rights Act. If such an order were issued, Texas would become the first state to be subject to preclearance in the post-Shelby County v. Holder world.
Then, about an hour later, the Supreme Court issued an order vacating the Seventh Circuit’s stay on the district court’s permanent injunction of Wisconsin’s photo identification law. Several scholars, including Volume 8.1 author Richard Hasen, have written excellent analyses of these two decisions. Rather than rehashing their analyses, I hope to demonstrate that Judge Ramos’ decision in Veasey underscores the need for the Voting Rights Amendment Act (VRAA).
The VRAA — which was introduced in January of this year by Senator Patrick Leahy (a Democrat) and Representative James Sensenbrenner (a Republican) — outlines a new “coverage formula” for determining which jurisdictions are covered under Section 5 of the Voting Rights Act. Jurisdictions that are covered under Section 5 cannot implement any voting change unless and until the federal government preclears (approves of) the change. Preclearance has historically played a major role in protecting the right to vote. Nonetheless, critics of the VRAA contend that a new coverage formula is unnecessary. They argue that there are other mechanisms (including other provisions of the Voting Rights Act itself) to ensure that the right to vote is sufficiently protected.
At first blush, it might seem that the decision in Veasey supports their contention. After all, Judge Ramos struck down SB 14 on the ground that it, inter alia, violated Section 2 of the Voting Rights Act, and she is considering the plaintiffs’ request for a remedy under Section 3(c). But Veasey does not undercut the need for a new coverage formula. To the contrary, it underscores the need for the VRAA. It demonstrates that Sections 2 and 3(c) do not provide as robust a protection of the right to vote as Section 5 provides.
Section 2 relief is an inadequate substitute for Section 5 relief because it cannot prevent a discriminatory law from going into effect; it can only be used to strike down legislation that has already gone into effect. But, in the voting rights realm, prevention is key. Relief after an election has passed is useless to those individuals who were prevented from exercising their right to vote. Even if a court vindicates a voter’s rights, there is no way for her to go back in time and cast her ballot in an election that has passed. Yet, as demonstrated by the history of Veasey, reliance on Section 2 relief will leave many potential voters in that very position. Indeed, took over fifteen months for Judge Ramos to strike down SB 14, despite the fact that the D.C. District Court had already found that “the law will likely have a retrogressive effect.”
Likewise, although Section 3(c) relief sets up a preclearance scheme, it is no substitute for Section 5 relief. Under a Section 5 claim, the state bears the burden of proof. Under a claim for Section 3(c) relief, on the other hand, the plaintiff bears the burden of demonstrating intentional discrimination. As evidenced by the sheer amount and complexity of expert testimony presented in Veasey, this is a heavy and time-consuming burden to meet. Thus, relying on Section 3(c) relief to protect the right to vote is unacceptable for the very same reason that relying on Section 2 relief is unacceptable — the chance of pending litigation leaving Americans disenfranchised is simply far too high.
Thus, while Judge Ramos’ decision in Veasey is one to be celebrated, the voting rights community must also use the decision as an opportunity to highlight the need for a new coverage formula. This is the only way to ensure that every American who wants to participate in the electoral process is able to do so.