Opinion

In Defense of a Voting Rights Act Amendment

As the Senate opens hearings today on whether updates are needed to this historic legislation, one suggested change would use monitoring and negotiation to protect rights.

Heather Gerken, an expert on election law, is a professor at Yale Law School.
National Journal
Heather Gerken
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Heather Gerken
June 25, 2014, 1:15 a.m.

It’s rare to see something new on the Hill these days. Con­gress is all but para­lyzed, every­one is wary of pro­pos­ing le­gis­la­tion, and mem­bers of Con­gress have nev­er been known for think­ing out­side the box. And yet the Vot­ing Rights Amend­ment Act of 2014 (VRAA)—Cong. James Sensen­bren­ner’s bi­par­tis­an ef­fort to re­vive Sec­tion 5 of the Vot­ing Rights Act, which was ef­fect­ively evis­cer­ated by the Su­preme Court last sum­mer—was in­tro­duced earli­er this year. And it of­fers a new paradigm for civil rights en­force­ment.

Today, the Sen­ate Ju­di­ciary Com­mit­tee will open a hear­ing where act­iv­ists, le­gis­lat­ors, and oth­er in­ter­ested parties will share ideas about just what sort of Vot­ing Rights Act changes are sorely needed. Wheth­er the VRAA suc­ceeds, or even man­ages to be­come law, is any­one’s guess. But pro­vi­sions of the bill are worth watch­ing closely be­cause they could re­pro­duce some of the ma­gic of the old Sec­tion 5.

Sec­tion 5 used to re­quire cer­tain jur­is­dic­tions (mostly states in the Deep South) to ask the fed­er­al gov­ern­ment’s per­mis­sion be­fore mak­ing a change in the way they ran elec­tions. Un­til a rule was “pre­cleared,” it could not be im­ple­men­ted. This un­usu­al pro­vi­sion solved the cent­ral prob­lem of vot­ing-rights en­force­ment dur­ing the Civil Rights era—keep­ing up with the in­creas­ingly cre­at­ive strategies re­cal­cit­rant loc­al­it­ies used to dis­en­fran­chise voters. Every time a court deemed one dis­crim­in­at­ory prac­tice il­leg­al, loc­al of­fi­cials would switch to an­oth­er. Sec­tion 5 al­lowed the De­part­ment of Justice to get one step ahead of loc­al of­fi­cials.

Last year, the Su­preme Court des­troyed Sec­tion 5’s found­a­tions by in­sist­ing that the “cov­er­age for­mula,” which de­term­ined which jur­is­dic­tions had to pre­clear their changes, vi­ol­ated the prin­ciples of fed­er­al­ism by treat­ing some states dif­fer­ently than oth­ers. In an ef­fort to avoid this prob­lem, the pro­posed VRAA would re­quire all jur­is­dic­tions to pub­li­cize changes to their vot­ing sys­tems in ad­vance and would make it easi­er for civil rights groups to stop those changes from tak­ing ef­fect—at least tem­por­ar­ily—when chal­len­ging them in court. Many have been dis­ap­poin­ted by the fix be­cause it’s not nearly as power­ful a weapon as Sec­tion 5. But it may make pos­sible the be­hind-the-scenes bar­gain­ing that did much for civil rights en­force­ment un­der Sec­tion 5.

We tend to fo­cus on the most vis­ible mo­ments in Sec­tion’s 5 his­tory, those when the Justice De­part­ment for­bade jur­is­dic­tions from im­ple­ment­ing this or that policy. Less no­ticed, but no less im­port­ant, were the in­vis­ible di­men­sions of Sec­tion 5 en­force­ment—the be­hind-the-scenes bar­gain­ing that took place be­fore pre­clear­ance was gran­ted or denied. The Justice De­part­ment would work with loc­al of­fi­cials and rep­res­ent­at­ives of minor­ity voters to ham­mer out a solu­tion be­fore a pre­clear­ance deni­al was is­sued. This pro­cess of give-and-take of­ten en­abled loc­al of­fi­cials to fig­ure out a way to do what they wanted to do without un­duly bur­den­ing minor­ity voters or lim­it­ing their par­ti­cip­a­tion. It was a chance for loc­al in­put, for loc­al tail­or­ing, for both sides to learn about each oth­er’s per­spect­ives.

Vot­ing rights ex­pert El­len Katz, in as­tutely de­scrib­ing how this pro­cess worked with re­gard to South Car­o­lina’s voter ID law, noted that this be­hind-the-scenes pro­cess “provided a for­um in which in­ter­ested and af­fected parties were able to identi­fy, dis­pute, and ul­ti­mately ad­dress the bur­dens a pro­posed elect­or­al rule threatened to im­pose on minor­ity voters.”

While this is not typ­ic­ally how we think of civil rights en­force­ment, this type of ne­go­ti­ation between gov­ern­ment, in­terest groups and the would-be plaintiffs and de­fend­ants on any giv­en is­sue—is com­mon in oth­er en­force­ment areas. It can of­fer an ef­fi­cient and ef­fect­ive reg­u­lat­ory strategy for in­sur­ing that work­places are safe, that busi­nesses grow without harm­ing the en­vir­on­ment or hurt­ing con­sumers, and a range of oth­er com­plex tasks for which en­force­ment re­sources are in short sup­ply and case-spe­cif­ic judg­ments mat­ter.

A com­bin­a­tion of na­tion­wide cov­er­age, trans­par­ency meas­ures, and the right in­cent­ives for bar­gain­ing could re­pro­duce a sim­il­ar dy­nam­ic in the vot­ing rights con­text. The pro­posed VRAA clearly of­fers two of the three with its re­quire­ment that all loc­al­it­ies pub­li­cize their vot­ing rules in ad­vance.

The real ques­tion is wheth­er loc­al of­fi­cials have suf­fi­cient in­cent­ive to bar­gain un­der the terms of the pro­posed VRAA. Loc­al of­fi­cials came to the ne­go­ti­at­ing table un­der the old Sec­tion 5 be­cause they feared their re­quests for pre­clear­ance would be denied. Sec­tion 5 hung like the sword of Damocles over every ne­go­ti­ation, provid­ing the De­part­ment of Justice and ra­cial minor­it­ies cru­cial lever­age in the ne­go­ti­at­ing pro­cess. We don’t yet know wheth­er the pro­posed VRAA’s lever­age—the risks of pub­lic out­cry against com­munit­ies ac­cused of in­fringing on minor­ity vot­ing rights and the threat of lit­ig­a­tion—will be enough of an in­cent­ive to in­duce loc­al of­fi­cials to com­prom­ise be­fore a law­suit gets filed.

Should the VRAA’s new reg­u­lat­ory strategy suc­ceed in fa­cil­it­at­ing the be­hind-the-scenes bar­gain­ing that made Sec­tion 5 such a power­ful tool in the civil rights ar­sen­al, the le­gis­la­tion will con­tin­ue the stor­ied tra­di­tion of the Vot­ing Rights Act. Sec­tion 5 was one of the most nov­el and cre­at­ive civil rights en­force­ment strategies ever de­vised. What we need is a sim­il­arly cre­at­ive strategy for 21st cen­tury vot­ing-rights en­force­ment. Let’s hope that the pro­posed VRAA can sup­ply it.

Heath­er Gerken, an ex­pert on elec­tion law, is a pro­fess­or at Yale Law School.


HAVE AN OPIN­ION ON POLICY AND CHAN­GING DEMO­GRAPH­ICS? The Next Amer­ica wel­comes op-ed pieces that ex­plore the polit­ic­al, eco­nom­ic and so­cial im­pacts of the pro­found ra­cial and cul­tur­al changes fa­cing our na­tion, par­tic­u­larly rel­ev­ant to edu­ca­tion, eco­nomy, the work­force and health. Email Jan­ell Ross at jross@na­tion­al­journ­al.com. Please fol­low us on Twit­ter and Face­book.

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