Delegate the oversight formula
This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.
If the Supreme Court strikes the pre-clearance provisions (Section 5) of the Voting Rights Act, it will most likely do so because the statute’s “coverage formula” is untethered from evidence of current discrimination against racial minorities.
The oversight formula determines which states must receive the federal government’s blessing before making any changes to their election laws. It is based on decades-old evidence of discrimination. When Congress in 2006 extended the pre-clearance provisions for another 25 years, legal scholars warned that the extension would be constitutionally vulnerable ‑ unless Congress updated the formula. But politically this was too hot to handle.
If the court strikes down Section 5, Congress should re-enact it while delegating to the Justice Department, or a new administrative body, responsibility for determining which states are subject to oversight and which racial groups are protected in each state. The new Section 5 would take effect only after the agency resolves these questions.
The delegation solution has political, legal and policy advantages over the alternative ‑ in which Congress tries to craft a new coverage formula.
Politically, this solution allows Congress to punt on the question of which states should be subject to oversight. So it gives political cover to members of Congress from states that may fall under the jurisdiction of a re-focused Section 5.
Legally, the delegation solution creates a mechanism for revising the oversight formula at low cost. Let’s say the courts strike down the new formula five years from now. It would be far easier for an agency run by a single individual or small board to issue a regulation responding to the court’s concerns than for a deeply divided Congress to create the same reforms by statute.
The best reason for delegating which states are subject to federal oversight, however, is policy, not law or politics. Recent advances in social science and statistics allow racial and political attitudes to be measured far more accurately. It is now possible to estimate state-by-state differences in public opinion, using national surveys of modest size, and to estimate respondents’ racial beliefs from answers to survey questions that do not require people to admit to socially inacceptable attitudes. (Google is also a revealing tool.)
An agency with a modest budget for survey research should be able to produce a sensible, and eminently defensible, coverage formula.
The task for Congress is to decide what principle should guide the formula. Should it track citizens’ racial attitudes, on the theory that members of a racial minority are most likely to face electoral discrimination in states where they are negatively stereotyped by the majority? Should it track electoral incentives, on the theory that a racial minority is most likely to be targeted for political exclusion where its members share political preferences and can tip the balance of partisan control in legislative or executive bodies? Or should the coverage formula combine these approaches?
Once Congress makes this decision, the administrative agency can get to work.