Opting into the Voting Rights Act

By Heather Gerken
January 30, 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 strikes down the Voting Rights Act, many will argue that we should abandon the civil rights model of elections and opt for a national law setting uniform election standards that would protect every voter.

I’m all for protecting every voter. But I would hate to lose what Section 5 provides – protections for racial minorities, in particular. The other protections against racial discrimination in voting – most notably, Section 2 of the Voting Rights Act – are too costly and cumbersome to protect racial minorities from the practices that Section 5 now deters.

Section 2 works well for high-stakes redistricting battles, where the game is worth the candle. But for the myriad low-level discriminatory practices, no civil rights group has the resources to bring suit every time. We still need what Section 5 provides: a simple, quick and low-cost strategy for protecting minority voters.

The puzzle is how to create such a system without treading on whatever constitutional prohibitions the court sets up. If the court strikes down Section 5 for targeting some jurisdictions but not others, that problem can be solved by creating a nationwide scheme. After all, there’s plenty of discrimination outside the Deep South.

But the court could decide that requiring all states to pre-clear their changes is unduly burdensome. So how do we create a national scheme that doesn’t burden the states but still offers a low-cost remedy for civil rights violations?

An opt-in approach would create a simple, administrative procedure for enforcing the Voting Rights Act. It would allow minority voters to opt into the act when there is a problem, rather than forcing states to pre-clear thousands of unproblematic decisions. Such an approach would preserve a safety net for minority voters while excising the features that have put Section 5 at constitutional risk.

Section 5 requires jurisdictions subject to its oversight to pre-clear haystacks of innocuous practices – 15,000 to 24,000 each year – so the Justice Department can spot the discriminatory needle. An opt-in approach would present the DOJ with needles, not haystacks. It would focus only on practices that minority communities find discriminatory.

The result would be a more flexible, locally informed and targeted enforcement strategy.

Under an opt-in approach, jurisdictions need not pre-clear every change. Instead, civil rights groups and community leaders would “opt in” to the Voting Rights Act only where there’s a problem, filing a simple one-page complaint with the Justice Department. DOJ staffers would look into the claims that raise red flags and could suspend discriminatory changes to voting procedures.

Like Section 5, the opt-in approach can ferret out small-bore and large-scale discrimination, since it relies on a low-cost administrative procedure rather than a costly lawsuit. Unlike Section 5, it minimizes the burdens placed on local officials, while concentrating Justice Department resources on genuine problems.

An opt-in approach thus rids Section 5 of its most burdensome features while ensuring that the Justice Department can keep pace with the changing face of discrimination.

One might worry that community leaders and public-interest groups shouldn’t be responsible for doing the legwork needed to initiate an investigation. But that’s how Section 5 has always worked. The Justice Department has never had enough resources to review every change ‑ so staffers relied on a network of civil rights advocates and minority representatives to help them sort the wheat from the chaff.

The only difference would be that the decision about which changes get investigated would be made first by community representatives – not distant bureaucrats in Washington. This sort of cooperative regulatory strategy has a track record in other areas where the stakes are high and enforcement resources are sparse.


PHOTO (Insert): ttorney General Eric Holder at the Justice Department in Washington December 19, 2012. REUTERS/Gary Cameron



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