Justin Levitt on Shelby County Case: Aftermath Could Get Expensive

[Image courtesy of mocana]

There’s so much to chew on in the wake of yesterday’s decision by the Supreme Court in Shelby County v. Holder that it’s a little overwhelming … consequently, I’ve tried to think small and focus on the impact the decision will have on the actual conduct of elections post-Shelby.

Even that is a big task, but fortunately I’m not the only one thinking about it; Loyola’s Justin Levitt had a short excerpt from his commentary at SCOTUSBlog that suggests changes to the Voting Rights Act will hit jurisdictions in a very painful place – the wallet.

Noting that the loss of preclearance means that “voting rights now depend on affirmative litigation”, he observes that

This litigation comes at a cost. The lawyers and political data experts needed to prove a violation of Section 2 of the Voting Rights Act are expensive. And even if statewide election rules and redistricting plans become natural targets for government, nonprofit, and party resources, the costs of these suits may be prohibitively expensive for others. When the city council lines of a small town are redrawn to fracture the representation of a growing minority community that threatens the status quo, poorer communities will find it harder to fight back.

Intriguingly, the costs are not merely one-sided. (This is not cause for solace.) Costs may also well increase for the small towns in covered jurisdictions, making the absence of Section 5 a lose-lose proposition. Under Section 5, the administrative preclearance process was relatively straightforward for the vast majority of proposed policy changes. And though the preclearance process (expressly) did not insulate laws from subsequent litigation, successful preclearance may have served as a signal to deter follow-on lawsuits, in cases where affirmative claims were plausible but uncertain. Without Section 5, that signal disappears. Which may lead to an increase in litigation, for warranted and unwarranted lawsuits alike. Local governments that choose to defend will find their lawyers expensive as well.

In an environment where money is already an issue, this is likely to be a key consideration going forward. It’s just one of many things worth watching as the impact of Shelby (and a pared-down Voting Rights Act) reaches the nation’s election jurisdictions.