Opinion

The Great Debate

Making sure race is considered

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.

The Voting Rights Act has worked for almost 50 years to remove racial discrimination from the electoral process and prevent its return. Wednesday the U.S. Supreme Court is expected to hear oral argument on the constitutionality of Section 5, one of the act’s most powerful provisions. Section 5’s work is done, this argument goes, and the provision has outlived its usefulness.

Yet some of Section 5’s most important work lies beyond its technical application. Section 5 requires that jurisdictions with a documented history of racial discrimination in voting seek federal approval for any voting changes. The aim is to ensure that new voting laws will not “retrogress” — or harm — minority voting rights. It subtly and constructively inserts race into electoral decision-making — creating a race consciousness among decision-makers that can often preempt discrimination. This deterrent effect, and its impact on the discourse of race in elections, may be Section 5’s most important — and unfinished — work.

Section 5 brings race into the room every time electoral decisions are made in covered jurisdictions. It is not only by Section 5’s wording, however, that race is part of the discussion when politicians re-raw district lines, election administrators contemplate voting changes and judges incept new electoral schemes.  Race has had a reserved seat at the table of American democracy since the nation’s founding.

The well-documented evolution of voting rights underscores the destructive use of race to deny voting rights and political equality to minority citizens. The Supreme Court acknowledged in Shaw v. Reno that “the legislature is always aware of race” when it draws district lines.

The strong case for keeping Section 5

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.

There are deep ironies in the current case against Section 5 of the Voting Rights Act. Before a 5-4 Republican majority of the Supreme Court opens the door to stronger voter suppression laws by overturning it in Shelby County v. Holder, the justices ‑ and the informed public ‑ should consider how effective Section 5 has been. Highly unusual political conditions made the act’s passage and renewals possible, and there would be almost insuperable difficulty in replacing it now that those conditions have changed.

Since 2009, I have been compiling a comprehensive list of voting rights incidents. (I have also served as an expert witness in such voting rights cases as those challenging the 2011 Texas redistricting laws.) The list now has 4,141 incidents: legal cases brought under Section 2 of the Voting Rights Act; legal cases brought under Section 5 of the act; objections by the Justice Department under Section 5 and “more information requests” issued by the department as part of the Section 5 process, if they resulted in pro-minority changes in election laws; and 14th Amendment cases.

What of congressional power over voting?

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 Section 5 of the Voting Rights Act in Shelby County v. Holder, the focus will turn to Congress and the question of what legislation it should enact in place of Section 5. An equally compelling question is what will happen to the scope of congressional authority over elections.

In City of Boerne v. Flores (1997), the court identified the Voting Rights Act as the ideal piece of remedial legislation, perfectly tailored to address the harm of voting discrimination and therefore an “appropriate” use of congressional authority. The court made this determination without discussing the combined authority of Congress under the 14th and 15th Amendments to regulate state and federal elections. The decision focused only on authority granted under the 14th Amendment.

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.

Why Section 5 survives

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.

“The smart money is on the court striking down [Section 5 of the Voting Rights Act] as an improper exercise of congressional power,” Rick Hasen has warned in his introduction to this forum. That bet is a poor one.

The “experts” may well be proven wrong ‑ as they were in 2009 when the Supreme Court found no reason to rush into a constitutional judgment on the constitutionality of pre-clearance. “Our usual practice,” Chief Justice John Roberts said then, “is to avoid the unnecessary resolution of constitutional questions.” And that is just what the court did.

If the court strikes Section 5 of 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.

We celebrated Martin Luther King Jr.’s birthday last week in the shadow of a fight over the constitutionality of a key provision of the Voting Rights Act. The Supreme Court will soon hear arguments in Shelby County v. Holder, raising the question whether Section 5 of the act, which requires that states and localities with a history of racial discrimination in voting get permission from the federal government before making any changes in election procedures, is now unconstitutional. The smart money is on the court striking down the law as an improper exercise of congressional power, although Justice Anthony Kennedy or another justice could still surprise.

If the court strikes Section 5, the big question is: What comes next? Reuters has invited a number of leading academics, who focus on voting rights and election law, to contribute to a forum on this question. In this introductory piece, I sketch out what may happen and what’s at stake.

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