In our earlier blog post about the pending Supreme Court case Shelby County, Alabama v. Holder we detailed reasons why the availability of Section 2 lawsuits was an inadequate substitute for Section 5 of the Voting Rights Act. As detailed in that post, enormous resources are needed to bring such a case and the burdens associated with such cases are quite high (both in terms of the burden of proof and dramatic financial costs, among other things). In addition, unlike Section 5 where voting changes are submitted to either the Justice Department or the DC Court and notices of such changes are posted weekly and publicly available, Section 2 requires knowledge that a particular voting change is being contemplated or has been made. In other words, Section 2 lacks the “detection” function of Section 5, where all voting changes undergo preclearance review and public notice of the changes is generally provided. Reliance on Section 2 litigation would allow many discriminatory voting changes to go into effect because they would fly beneath the radar. That is especially the case with respect to the thousands of voting changes that occur each year at the local or county level.
Also, at the oral argument, in response to a question from one of the Justices about the availability of preliminary injunctions under Section 2, it was estimated that in approximately 25% of successful Section 2 cases, preliminary injunctions have been issued. Our familiarity with Section 2 cases, combined with our conversations with other voting rights experts in the last 48 hours since oral argument in theShelby County case, tells us that the 25% figure is grossly overstated. The actual number of preliminary injunctions that have been granted in the hundreds of Section 2 cases that have been filed over the years is quite small, likely putting the percentage at less than 5%, and possibly quite lower.