The next Voting Rights Act
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.
Richard Hasen introduces this symposium by asserting the “smart money is on the [U.S. Supreme] court striking down” Section 5 of the Voting Rights Act. But I disagree with his framing. The next Voting Rights Act needs both Section 5 and additional voting rights protections.
Unfortunately, Hasen is helping opponents of Section 5. He gives justices allowance to ignore facts and law supporting Section 5, and instead perhaps think: Scholars anticipate our court will invalidate Section 5, so we can invalidate it without seeming too extreme or too political.
Section 5, however remains a significant tool in preventing voting discrimination. During the 2012 election, it blocked new hurdles that would have made it harder to vote in Florida, South Carolina and Texas. Hasen himself anticipates more problems if the court invalidates Section 5 – “more brazen partisan gerrymanders, cutbacks in early voting and imposition of tougher voting and registration rules.”
Arguments that Section 5 unfairly targets states subject to its jurisdiction are overblown. Areas without a record of recent discrimination can “bail out” of this oversight. Since 1982, no area seeking a bailout has been turned down.
When Congress renewed Section 5 in 2006, it compiled a 15,000-page record of hundreds of voting rights violations in the covered areas. Based on this, overwhelming bipartisan majorities voted to renew Section 5. (The Senate vote was 98-0.) The court should avoid politics and defer to congressional judgments about oversight.
While Section 5 remains critical, we also need new voting rights protections. The U.S. is near the bottom of advanced democracies in voter participation. Too often, politicians win elections by manipulating voting rules rather than by accurately representing voters in our increasingly diverse nation. Federal, state and local governments can play key roles in expanding participation and curtailing manipulation.
Some of the new protections should help all Americans. Our antiquated paper-based registration system, for example, results in voters improperly dropped from the rolls, long lines and provisional ballot disputes. We need automatic registration of all eligible voters that allows them to correct mistakes at the polls on Election Day.
We should also increase access by expanding early voting; restoring rights to former offenders who have served their time; and relaxing overly restrictive voter-ID and proof-of-citizenship rules. Further, we should consider alternatives to our current system of gerrymandered single-member legislative districts.
Other new voting protections could help disproportionately excluded Americans. For example, the Voting Rights Act should be revised to more effectively protect minority voting rights in court. But race should not be the only focus. We also need more protections for military voters, young voters and Americans with disabilities.
While these protections would expand participation and curtail manipulation, none adequately replaces Section 5’s ability to block discriminatory rules before they take effect. The next Voting Rights Act should supplement – not substitute for – Section 5.