Elections After Shelby County: Bring on the Election Geeks

[Image courtesy of supremecourt.gov]

This piece originally appeared in the June 27, 2013 electionlineWeekly.

Tuesday’s Supreme Court opinion in Shelby County v. Holder (invalidating the Voting Rights Act’s coverage formula for preclearance and effectively ending most preclearance activity under Section 5 of the Act) is likely to reverberate across the nation for some time.

Already, states that had been blocked from enforcing election changes because of Section 5 – like Texas’ voter ID requirement – have begun to move forward as voting rights advocates consider their next moves in a landscape that has been radically changed.

I won’t pretend to provide any kind of cogent legal analysis of the Shelby County decision, which is fascinating on so many levels; for that, you should check out SCOTUSBlog, ElectionLawBlog or the coverage at the New York Times.

But I do think the decision represents a challenging opportunity for the hardy band of practitioners, academics and advocates who constitute the group I call election geeks.

Why? Because in the post-Shelby landscape, data — specifically, data about election administration — is more valuable and likely to be more influential than ever before.

Just think about all the different ways data will be necessary in the foreseeable future:

• + Notwithstanding considerable pessimism, Congress (or at least some members) are taking up the Court’s call to update the coverage formula of the Act and will need data for that effort;
• + Without Section 5, plaintiffs in cases of all kinds are going to need data to make the case that certain election procedures violate Section 2 of the Act;
• + By the same token, defendants are going to need data to demonstrate that their laws or practices do not violate the Act – or make the case in advance of a lawsuit that litigation is unnecessary;
• + Everyone concerned is going to have to use data to evaluate whether litigation is even advisable given the higher costs associated with the need to actually go to court; and
• + Advocates and election officials are going to need data to reach out to legislators to identify opportunities to amend or repeal laws that might violate the Act – thus avoiding litigation.

In short, in a post-Shelby world the question isn’t whether a given law might affect voting rights; it will require proof that it does (or doesn’t) – and data (good data!) will be essential to that effort.

That’s where the election geeks come in.

The same commitment to evidence-based analysis that animates projects like Heather Gerken’s idea of a Democracy Index or Pew’s Elections Performance Index – indeed, the approach which the Shelby majority seemed to be criticizing Congress for failing to embrace in its 2006 reauthorization of the Voting Rights Act – is and has to be the way forward in assessing progress from now on.

Here’s hoping that, beginning immediately if not sooner, we as a field can commit ourselves to better collection and analysis of election data in the service of answering all of the questions raised by the Shelby County case.

Election geeks – it’s your time.