We’ve heard a great deal about how eliminating Section 5 and requiring plaintiffs to rely on Section 2 will saddle victims of discrimination with the awful “burden” shift. 

If Section 2 is so “burdensome” to plaintiffs, maybe Sullivan and Cromwell can take the case for free.  After all, they spent (or some might say wasted considering they lost) enormous amounts of money attacking South Carolina Voter ID in the preclearance context under Section 5.

One of the most powerful (or literally, burdensome) parts of Section 5 is the burden shift. Advocates of Section 5 like to say that Section 2 is inadequate because the burden shifts to the plaintiffs to bring and prove a case.

As I said yesterday at the Florida International University law school – the plaintiffs indeed carry the burden in a Section 2 case – just like they do in every single other cause of action in American law!  It isn’t a radical departure from legal traditions to require plaintiffs to actually prove a case in court with evidence, rather oppose an election change with DOJ bureaucrats with innuendo about racial intent.

In theory, that’s an attractive principle. But let’s examine it in practice as it relates to Sullivan and Cromwell.

In the South Carolina Voter ID lawsuit, the League of Women Voters intervened.  This intervention cost the taxpayers of South Carolina significant amounts of money. The wolf pack of intervenors demanded deposition time, conducted depositions and were allowed to engage in expensive and burdensome discovery.  Sullivan and Cromwell paid the freight, or perhaps more appropriately, their paying clients did. (peruse a sample).  This third party intervention burden was a topic in my brief in the Shelby v. Holder case.

Obviously there is lots of money and lawyer time at Sullivan and Cromwell to throw at Voting Rights Act litigation, money we’d presume would still be available for Section 2 cases.  If so, then perhaps the “burden” on a plaintiff isn’t so bad if Section 5 is struck down.  After all a plaintiff can still call the lawyers at Sullivan and Cromwell at 202-956-7500 and ask them to give a Section 2 defendant as hard of a time as they gave South Carolina.