UI prof: Voting Rights Act decision 'a pretty small thing'
URBANA — The Supreme Court ruling that struck down a key provision of the Voting Rights Act is not a "gargantuan change" and likely won't have a major impact on elections, argues a University of Illinois professor who specializes in elections and political behavior.
Critics, including the court's dissenters, assailed Tuesday's ruling as a setback for civil rights that ignores decades of discriminatory election practices that still persist.
But Brian Gaines, professor at the UI Institute for Government and Public Affairs, said, "I see this as a pretty small thing. The Voting Rights Act remains in place."
A majority of justices upheld the idea of a federal "preclearance requirement" for certain states or counties with problematic minority voting records when they want to make any changes in voting laws, Gaines said. But the ruling threw out the section outlining which states are covered by that requirement, saying it must be based on more recent election data.
"It's anachronistic to keep a list that was made in the mid-'60s and think it's sensible to single out states and counties based on" voting statistics from decades ago, Gaines said. "Congress can write a new list."
In fact, there already is a procedure under the act for states or counties to get off the list, which some have done, though it's complicated, he said.
Gaines conceded it's unlikely Congress will act, given the fractured political environment.
The dissenting opinion from Justice Ruth Bader Ginsburg noted that Congress has repeatedly renewed the Voting Rights Act and questioned why the Supreme Court would step in to revise it when legislators have chosen not to. The court had hinted in an earlier ruling that Congress should do so, though justices stopped short of throwing out the coverage formula.
Gaines said Republicans fear that any attempt to change the act would be construed as an anti-civil rights amendment.
"Now that the court's done the tricky part, Congress won't touch it," Gaines predicted.
But "that still leaves much of the Voting Rights Act intact," and it's unlikely that those states formerly covered by the requirement will make any drastic changes, he argued.
"You're not going to see the return of white primaries and literacy tests," devices used to prevent blacks from voting in the mid-20th century, he said.
The battleground now is over voter identification laws and constraints on absentee or early voting, said Gaines, who just wrote a white paper for a presidential commission on elections. Political scientists are debating the trade-off between preventing fraud and protecting voter secrecy, on the one hand, and not suppressing the vote, he said.
"There's little expert consensus on what is the best practice for these areas," Gaines said.
Surveys show that 20 to 30 percent of Americans believe there is vote fraud in elections, and voter-ID laws are popular across all minority groups, Gaines said. It's healthy to have all the states experiment with different laws to see what works best, he said.
If someone can show conclusively that restrictions on absentee ballots limit minority access to voting, courts can still strike them down based on the Voting Rights Act, he said.
"For all the big rhetoric, it's not obvious that it'll be any change at all in the next presidential election," he said.
Gaines said he's not as familiar with local elections, but argued that citizens who believe changes in city council or school board elections would damage minorities — such as moving from elected districts to at-large voting — can still sue the jurisdiction and win, using the Voting Rights Act. The only difference is the Department of Justice doesn't have to approve the change first, he said.
Critics say legal challenges are lengthy and expensive for individual voters. Gaines said even the threat of one could be a strong deterrent to local governments.
He also noted that none of the justices joined Justice Clarence Thomas, who argued that the preclearance requirement itself should be thrown out.
"People who are worried that this is the beginning of disenfranchisement of minorities ... it's a smaller change than it would have been if there were five justices concurring."