Focus on new legislative approach

By Richard H. Pildes
January 31, 2013

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 invalidates Section 5 of the Voting Rights Act, its defenders may be tempted to tinker at the margins and reconfigure it in a way that could comply with the court’s decision. Given Section 5’s symbolic status and historical importance, some will likely feel a strong pull to “save” it by staying within the essential framework of the current Section 5, while updating various details. But stepping outside the model of Section 5 and embracing a different legislative approach for national voting-rights legislation might be far more effective.

There are now two models for national voting legislation. Section 5 reflects the first template: the race-based, Civil Rights model for protecting the right to vote. This was born out of an earlier era’s historic circumstances, but also reflects the political and constitutional constraints of that era. Enormously effective and easily justified in its early years, Section 5 – and the Civil Rights model it reflects – has also become increasingly limited in its capacity to address many of today’s voting problems.

The alternative legislative model provides universal protections for the right to vote as such for all Americans nationwide. The few laws related to voting that Congress has more recently enacted have taken this newer form. The Help America Vote Act of 2002 (HAVA) and the National Voter Registration Act of 1993 (NVRA), for example, are both general, universal national laws that protect the right to vote of all citizens.

This is a shift from the Civil Rights model, which instead narrowly targets only race-based infringements of the right to vote, and only in those parts of the country that once had a history of racial disfranchisement.

The Section 5 template has at least three clear limitations. They would most likely remain, no matter how a version might be reconfigured.

First, Section 5 is limited in prohibiting only race-based denials of voting rights. When the Voting Rights Act was enacted in 1965, that was the urgent problem. But limiting ourselves to this today would mean, for example, that for those concerned about those voter identification laws that have excessively demanding requirements, Section 5 would, at best, only address those laws that could be proven to have a racially discriminatory purpose or effect. An identification law whose effects primarily burdened the elderly or students, say, would remain beyond Section 5’s reach.

In addition, the need to prove that a law is racially based to invalidate it can make for often difficult problems of proof. Moreover, the Supreme Court’s doctrine on civil-rights legislation is imposing increasing constraints on how far such legislation can go.

Second, Section 5 is limited because it targets only changes in existing voting rules and practices. It has no effect on laws and existing practices that have long been in existence. One of the biggest barriers to voting remains our system of voter registration. But because most of these laws have been around for a long time, Section 5 does not reach them.

In similar fashion, for those concerned about criminal-disfranchisement laws, most of which have also been around for decades, Section 5 is of no effect. It is hard to envision how a statute like Section 5 could be redesigned to apply to all existing voting laws rather than just to changes in those laws. Section 5 was originally structured to address only changes to voting laws because this was the limited, specific problem for which it was designed.

Third, Section 5’s was devised to target narrowly specific geographic areas. This means trying to define in advance which parts of the country have entrenched voting problems that justify being singled out. Again, this targeting is historically contingent: In 1965 and for many years after, Congress could easily predict where the worst racially discriminatory voting practices were likely: in those jurisdictions, mostly in the South, with a long history of denying minority voters access to the ballot box.

Today the patterns are more complex. For those who view excessive identification requirements as the major problem, the recent laws adopting new ones have emerged in different regions around the country.

We should keep in mind that when Section 5 was first enacted, it was unclear whether Congress had the constitutional power to protect the right to vote outside the context of racial discrimination. Today, that concern is gone. There is no doubt that Congress can protect the right to vote more universally.

In the abstract, of course, Congress could respond to an unfavorable Supreme Court decision by pursuing both models of national voting legislation. It could update Section 5 and pass additional laws that would provide further protection for the right to vote on a universal, nationwide basis.

 

But there are practical constraints on how much any legislative body can, or will, devote to these issues. These constraints might mean that Congress will focus on only one type of approach in any future legislative efforts.

My concern is that a reflexive rush to save as much of Section 5 as possible might stand in the way of fresh thinking about the way to pursue voting legislation that would actually be most meaningful and effective.

 

ILLUSTRATION: MATT MAHURIN

PHOTO (Insert): John Lewis (on right in trench coat) and Hosea Williams (on left) lead marchers across the Edmund Pettus Bridge on the march from Selma on Sunday, March 7, 1965.  REUTERS/Library of Congress/Courtesy Representative John Lewis

 

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