Voting Rights: The Next Generation

Voting Rights: The Next Generation

Description

Today’s Voting Rights Act (VRA) (1965), particularly its historically important Section 5, exists in a form and structure little different from the original Act of nearly forty-five years ago. The VRA of 1965 was a justifiably aggressive federal response to the race-based disenfranchisement of African Americans in readily identifiable geographic areas. Although it represented an unprecedented assertion of federal power over states and localities, the Act was in fact carefully and appropriately tailored to the historical context in which it originated. By focusing primarily on race-based denials of voting rights and by targeting its most stringent provisions to those areas with a history of race-based disenfranchisement, the VRA effectively tackled the predominant voting-rights issue of the prior century of American experience: the persistent efforts of mostly Southern jurisdictions to deny minority citizens the right to vote. As a response to the specific historical conditions that existed in 1965, the VRA was perhaps the most effective civil rights statute enacted in the United States. It represented the last significant step toward universal inclusion of adult citizens in American democracy, and it effectively prevented recalcitrant state and local governments from crafting new laws designed to suppress minority voting. As a policy-making attempt to address contemporary voting-rights problems, however, the VRA—particularly Section 5—might no longer offer the most effective means of securing access to the ballot box. The issues emerging today—voting technology problems, felon disenfranchisement laws that apply even to those who have completed their sentences, burdensome and unnecessary voter registration requirements—are not confined to jurisdictions with a long history of racially discriminatory voting practices, nor do they necessarily arise from the efforts of state and local governments to target minority voting per se. For this reason, the very statutory structure that rendered the VRA so effective in the initial decades of its existence—its narrow geographic targeting and its focus on changes in voting rules and practices—now constrains its ability to protect the right to vote As we look to the future of voting rights, one of the choices Congress and voting-reform advocates will face is how to conceive the general form that new voting-rights protections ought to take. In particular, Congress will have to decide if it wishes to continue to adhere to the historically contingent antidiscrimination model of Section 5 of the VRA or is ready to embrace new legislative models that, I want to suggest, better fit the voting rights problems of today. So far, Congress has proven reluctant to look beyond the existing structure of the VRA, in particular Section 5 of the Act—the “preclearance” provision that requires certain jurisdictions, mostly in the South, to submit proposed changes in voting rules and practices for federal preclearance approval before those changes can be implemented. Given the symbolic significance of the VRA and the fact that racially discriminatory voting practices have not disappeared completely, any proposal to move away from the Section 5 model understandably produces anxiety. Indeed, the last time Congress revisited Section 5, in 2006, Congress reauthorized it without fully addressing whether Section 5 needed to be updated in any profound way to reflect the changes in voting behavior that had taken place since 1965, or even since 1982, when Congress had last addressed Section 5 (Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act 2006). Since 2006, however, the Supreme Court has weighed into the debate in ways that may force Congress’ hand. First, the Court’s 2009 decision in Northwest Austin Municipal Utility District Number One v. Holder (2009) (NAMUDNO) has been widely interpreted as a strong warning to Congress that if Section 5 is not revised to address the Court’s concerns, it could be held unconstitutional in a future decision. Even if the Court upholds the constitutionality of Section 5 or avoids confronting that issue, the Court in NAMUNDO expressed the kind of skepticism about the justification for Section 5 that might well lead to narrow judicial interpretations of Section 5 going forward. These constitutional issues are prompted by unresolved debates about how different the jurisdictions covered by Section 5’s preclearance provisions are from those areas not covered; the Court has raised questions about whether the current pattern of coverage can be justified under the relevant constitutional standard. Second, the Court’s decision a week after NAMUNDO in Ricci v. DeStefano (2009), which appears to impose a higher standard for demonstrating racial discrimination based on disparate impact than previously required—a decision directed specifically at discrimination claims filed under Title VII of the Civil Rights Act of 1964—may nonetheless have a significant impact on the VRA. Like Title VII, the VRA protects against voting practices that disparately impact the voting rights of racial minorities. If the disparate impact analysis of Ricci takes hold or is expanded, it could thus make it more difficult to establish race-based violations under the VRA, further undermining the Act’s practical effect and potentially leading to additional constitutional concerns, particularly if in a later ruling, the Court goes so far as to find disparate-impact doctrines to conflict with the Equal Protection Clause (a question to which Ricci begins to open the door). As Congress reacts to these recent Supreme Court decisions—or, perhaps more likely, to future Supreme Court decisions that might more directly force Congress to address voting issues—it has two legislative models to work from. First, it could tinker at the margins of Section 5, narrowing the Section’s geographic scope to target only those jurisdictions with sufficiently egregious race-based voting rights problems to justify continued preclearance oversight. This approach would preserve the basic civil rights model of the VRA and address the constitutional concerns expressed in NAMUDNO, but it would further limit the Act’s practical effect and do little to address emerging voting rights problems. Alternatively, Congress could draw on two more recent voting-rights statutes enacted to address contemporary voting-rights concerns: the Help American Vote Act (HAVA) (2002) and the National Voter Registration Act (NVRA) (1993). Both HAVA and NVRA are generally applicable national laws that protect the right to vote as such of all citizens nationwide. Because the HAVA model relies on the fundamental constitutional right to vote—a right that was not fully recognized by the Supreme Court at the time the VRA was enacted—rather than on the equal protection concerns of the Fourteenth and Fifteenth Amendments, legislation of this type need not be limited to race-based voting-rights problems, nor tied to jurisdictions with entrenched racially discriminatory voting practices. This model also avoids the constitutional concerns raised by NAMUDNO and Ricci, even as it expands Congress’s ability to protect the right to vote. In this chapter, I will first explain why the VRA model, so effective in the early decades of its existence, may no longer offer an appropriate paradigm for protecting voting rights going forward. Then I will suggest that Congress would be wise, in the wake of the Supreme Court’s recent decisions, to think expansively, beyond the existing structure of the VRA, if it wishes to play a proactive role in protecting voting rights moving forward. If Congress is willing to step up and address the hard questions that the Supreme Court debate over the constitutionality of the VRA now prompts, Congress could ultimately do more to enhance the future of voting rights than by working at the margins of Section 5. In theory, of course, Congress could do both: It could update Section 5, as well as other parts of the VRA, while also enacting additional laws that would provide further protection for the right to vote on a universal, nationwide basis. But as a practical matter, legislative agendas confront various constraints, including ones of focus, energy, resources, and time; realistically, these constraints might mean that Congress will focus on only one type of approach in any future legislative efforts. Furthermore, there are constraints on frameworks of thought as well: An intellectual bias in favor of the status quo might lead Congress and advocates not to think outside the framework of existing approaches enough to pursue the changes that would actually be most meaningful and effective. Thus, my aim is to press the case for thinking about future voting-rights legislation through a model best attuned, I believe, to the voting problems that are central today and most likely to remain so in the immediate years ahead.

Source Publication

Race, Reform, and Regulation of the Electoral Process: Recurring Puzzles in American Democracy

Source Editors/Authors

Guy-Uriel E. Charles, Heather K. Gerken, Michael S. Kang

Publication Date

2011

Voting Rights: The Next Generation

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