The partisan politics of election laws
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.
Many commentators assume that the conservative Supreme Court justices will strike down Section 5 of the Voting Rights Act. Like Abigail Thernstrom, however, we are not so sure. Congress clearly has the authority to continue to maintain Section 5. If the court does strike it down, though, it will give Congress an opportunity to update the act for the 21st century.
In 2012, state legislatures passed many partisan initiatives designed to constrain the right to vote ‑ ranging from efforts to end same-day registration to adding voter identification laws. In Virginia, state senators used one colleague’s absence to pass a new, arguably discriminatory redistricting plan. In Indiana and North Carolina, new proposals would make it harder for some students to vote. Some states are considering tinkering with the way they choose electors to the Electoral College.
Some of these initiatives may have a disparate racial impact — and might be actionable under Section 2 of the Voting Rights Act. Some may even have been motivated by an intent to discriminate. But many of the actions that affect racial minorities seem to do so for partisan political purposes, not racial reasons.
Any possible legislative solution in this polarized environment is unlikely to focus on a particular substantive right — such as voter identification. Perhaps, however, Congress could delegate some authority to an administrative agency and empower citizens to better protect their rights.
This solution should try to preserve two critical features of Section 5: the pre-clearance requirement, which prevents discriminatory laws from going into effect, and the burden-shifting framework. The latter places the burden of proof on jurisdictions subject to Section 5 oversight – in other words, they must show that their laws do not have a discriminatory effect.
To accomplish this, the Voting Rights Act must be amended in two ways. First, the statute would prohibit any voting qualification, proposed or applied by any state or political subdivision, that might have a substantial impact on a citizen’s ability to vote in federal elections.
Second, Congress should create a nonpartisan federal agency — a Voting Rights Office similar to the Congressional Budget Office. Just as the CBO gives Congress independent analysis on budget issues, a VRO would provide independent analysis on any proposed voting qualification or procedure that might have a substantial impact on citizens’ ability to vote in federal elections.
This analysis could include the effect that the proposed law would have on racial groups as well as other relevant populations. Its analyses would be public, and could be initiated by members of Congress, civil rights groups, citizens of the affected states or even members of the state legislature. It could score proposed state laws on an index of political participation. It could also provide independent policy recommendations of best practices.
This agency’s effectiveness would depend on an enforcement mechanism. Section 5 is now largely enforced by the Justice Department. We would also emphasize the role of citizens as private enforcers. Any citizen should be empowered to sue any state or subdivision to stop it from enforcing any proposed law or practice that could have a substantial impact on voting rights. Where the agency decided that the law interferes with voting rights, the state or subdivision would have to show why it does not.
These three changes would remove the Voting Rights Act’s most controversial aspects, while updating it for the 21st century.
ILLUSTRATION (Top): MATT MAHURIN
PHOTO (Insert): The Capitol dome at sunset in Washington January 31, 2006. REUTERS/Hyungwon Kang