SECTION 2 AFTER SECTION 5: VOTING RIGHTS AND THE RACE TO THE BOTTOM.

• Author: Katz, Ellen D.
• Position: Special Issue on Gerrymandering

TABLE OF CONTENTS INTERODUCTION. 1962 I. SECTION 2 AND SECTION 5 1967 II. BARCKSLIDING. 1972 III. THE RACE TO THE BOTTOM 1981 A.Restrogression's Relevance 1981 B. The Endowment Effect and the Race to the Bottom. 1984 CONECLUSION 1990 INTRODUCTION

Five years ago, Shelby County v. Holder' released nine states and fifty-five smaller jurisdictions from the preclearance obligation set forth in section 5 of the Voting Rights Act (VRA). (2) This obligation mandated that places with a history of discrimination in voting obtain federal approval--known as preclearance--before changing any electoral rule or procedure. (3) Within hours of the Shelby County decision, jurisdictions began moving to reenact measures section 5 had specifically blocked. (4) Others pressed forward with new rules that the VRA would have barred prior to Shelby County (5)

Shelby County opened a spigot. From it, new electoral restrictions flowed, regulating both how voters cast ballots and the structures in which they cast them. These practices make electoral participation demonstrably more difficult for minority voters and hence were--or would have been--deemed "retrogressive" under the section 5 preclearance regime. (6) Prior to Shelby County, section 5 prevented covered jurisdictions from implementing such retrogressive electoral practices. (7)

In the years since Shelby County, plaintiffs have relied on section 2 of the VRA to challenge those retrogressive electoral practices that section 5 would have blocked. Section 2 proscribes practices that "result[] in a denial or abridgment of the right... to vote," and defines such practices as those that leave minority voters with "less opportunity... to participate... and to elect representatives of their choice" than white voters. (8) This standard has been construed to involve a comparison between the challenged practice and a "hypothetical alternative" of "what the right to vote ought to be," rather than a mandated comparison between a present practice and a prior one. (9)

Courts, nevertheless, have long considered prior practices as part of section 2's "totality of circumstances" review. (10) Specifically, they have treated evidence that a challenged practice diminishes electoral opportunities for minority voters as relevant--though, notably, not dispositive--evidence of legal injury under section 2. (11) A number of courts considering section 2 challenges since Shelby County have continued to engage in such comparisons, treating evidence of backsliding and the relish with which some jurisdictions have engaged in it to be probative evidence of a section 2 injury. (12)

Since Shelby County, this established approach has sparked increasing opposition. A number of states and local governments--both in once-covered jurisdictions (13) and in places where section 5 never applied (14)--have argued that retrogression was a concern under section 5 and section 5 alone, and thus that the backsliding retrogression described is no longer suspect in Shelby County's wake. Under this view, comparing a challenged electoral practice with its predecessor has no place in section 2 litigation. Instead, the equality of opportunity section 2 protects is thought satisfied so long as the challenged practice compares favorably to practices employed in other jurisdictions. More specifically, the disputed practice, no matter how retrogressive, is permissible so long as it is no worse than the most restrictive practice used in other places. (16) After all, the argument goes, why should a state be held liable for making an electoral practice less generous when other states employ that very practice without penalty?

The most direct response comes from section 2's text, its history, and the long-standing precedent construing it. (16) Section 2's "totality of circumstances" review means what it says--namely, that all circumstances are relevant to the statutory inquiry. (17) No single factor standing alone--be it retrogression or an unfavorable comparison to practices elsewhere--establishes a violation of section 2. (18) Nor does compliance with any particular factor or condition--be it nonretrogression or a favorable comparison to practices in other places--offer immunity from liability.

There is, however, an even more fundamental problem with recent efforts to immunize retrogressive practices when comparable or more restrictive practices exist elsewhere. Animating these efforts is the belief that an electoral rule is best examined independently from the system in which it operates. Excising evidence of backsliding from the section 2 inquiry isolates the challenged practice from the practice it supplants. Immunizing an electoral practice when a more restrictive one may be found elsewhere similarly ignores how an electoral rule operates in context. Reinforcing one another, both moves insist that the context in which the challenged practice operates is irrelevant to the section 2 inquiry. The statutory prohibition is not simply narrowed, but transformed. What was a nuanced inquiry into the opportunities for political participation is reduced to an ever-sinking floor with jurisdictions inoculating each other by adopting increasingly restrictive electoral practices.

The resulting race to the bottom is cause for serious concern. The validity of an electoral practice under section 2 has always depended critically on the context in which states used the practice. The new approach, which has seen mixed success so far, would derail that. It ignores how voters experience the electoral process in terms of both the benefits they derive and the burdens they face. Instead, it limits cognizable injuries to practices that fall below the least protective extant practice, which it also views in isolation from the rules with which that practice operates. In so doing, this decontextualized approach redefines what constitutes the injury under section 2 in a way that betrays Congress's intent and the role section 2 needs to play at this moment.

Part I of this Article examines the scope and application of sections 2 and 5 of the VRA in the years preceding Shelby County, noting salient differences between the two provisions, as well as the ways in which they overlap. This Part looks at how courts have treated backsliding in section 2 cases that predate Shelby County, the treatment of section 2 in Shelby County itself, and the role the decision suggests the provision should play going forward.

Part II looks at the ways in which litigants and courts have addressed backsliding in section 2 cases that postdate Shelby County. While evidence of retrogression continues to be treated as relevant to the legal inquiry under section 2, a number of defendants, their amici, and a few courts have sought to excise all evidence of backsliding from section 2 cases.

Part III argues that backsliding is not immaterial under section 2 but instead is a critical component of the local appraisal the statute mandates. It shows how the effort to excise evidence of backsliding from section 2 threatens to replace this multifactored contextual analysis with a fixed rule that would immunize an electoral practice from challenge so long as it is no more restrictive than the most restrictive electoral practice presently in use. The result would be a troublesome race to the bottom in electoral practice, in which the equality of opportunity section 2 guarantees would be satisfied by whatever limited opportunities the most restrictive extant electoral practice allows.

A short conclusion follows.

1. SECTION 2 AND SECTION 5

   Prior to Shelby County, the two core provisions of the VRA operated side by side. Distinct provisions, sections 2 and 5 differed in purpose and application.

   Section 5, the preclearance standard first enacted in 1965, applied only in places that utilized voting tests or devices and had very low voter participation on designated dates. (19) Section 5 required these "covered" jurisdictions to obtain preclearance, or approval from federal officials, before changing "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting." (20) To obtain preclearance and, thus, be able to implement new electoral rules, covered jurisdictions needed to demonstrate that the proposed change "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color" or, as of 1975, membership in specified language minority communities. (21) Jurisdictions bore the burden of proof, and those unable to make the required showing were unable to implement the proposed change. (22)

   Under section 5, an electoral change has long been understood to "deny[ ] or abridg[e] the right to vote" if it made electoral participation more difficult for the groups it protected. (23) The Supreme Court explained that "the purpose of [section] 5 has always been to insure that no voting procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." (24) The Justices accordingly read section 5 to mandate a comparison between a proposed electoral practice and the one it would supplant to determine whether the change would make voting more difficult for minority voters. (25) Notably, the retrogression standard allowed jurisdictions to maintain discriminatory practices so long as changes to them did not make matters even more difficult for minority voters. (26)

   Section 2 differs in scope and substance. The provision applies nationwide, rather than just in designated jurisdictions. (27) It lacks an expiration date and hence was never subject to periodic renewals. Section 2 does not employ section 5's unusual burden-shifting apparatus, and instead places the burden on the plaintiffs to prove the invalidity of a challenged practice. (28) Section 2 thus more closely resembles conventional antidiscrimination...