Jessica R. Amunson has offered her insight about the Voting Rights Act (VRA) to media outlets reporting on recent court decisions affecting the Act. In an article for The Hill, she discussed recent decisions coming out of several states that demonstrate the new approach Voting Rights Act advocates are taking in court and what these changes mean for litigation moving forward.
In 2013, the Supreme Court ruled that the section of the VRA that explains the requirements for states seeking approval to change the voting laws was outdated. As a result of the decision, Section 5 was rendered moot, and states who met the previous requirements no longer needed to seek approval from the Justice Department or the DC District Court before changing election laws. Supporters of voting rights worried that this would shift the burden of proof from the states to the voters themselves. Before, states had to demonstrate that their proposed changes would not discriminate against minority voters, and now, the voters themselves would have to demonstrate that their rights were infringed upon.
However, the recent federal court decisions illustrate that voting rights advocates are implementing a new strategy when it comes to voting rights cases. Plaintiffs are now using Section 2 of the VRA, which prevents states from employing procedures meant to deny someone’s right to vote based on their race, as a way to overturn the laws that previously would have been denied under Section 5. This strategy appears to be working, but at a cost. Section 2 litigation can be used only after discriminatory voting actions have already been put in place, and Section 2 cases require more time and resources to win, making the litigation rather expensive.
Ms. Amunson commented on these higher costs and the need for voting rights advocates to budget their resources, saying, “The major asymmetry here is that while the states litigate with virtually unlimited resources using taxpayer dollars, voting rights advocates must litigate on their own, in the hopes that they may eventually be awarded their fees and costs if they prevail. This means that, with limited resource, voting rights advocates must choose their battles carefully and thus are likely to pursue only the most egregious cases.”