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 the pre-clearance provisions (Section 5) of the Voting Rights Act, it will most likely do so because the statute’s “coverage formula” is untethered from evidence of current discrimination against racial minorities.
The oversight formula determines which states must receive the federal government’s blessing before making any changes to their election laws. It is based on decades-old evidence of discrimination. When Congress in 2006 extended the pre-clearance provisions for another 25 years, legal scholars warned that the extension would be constitutionally vulnerable ‑ unless Congress updated the formula. But politically this was too hot to handle.
If the court strikes down Section 5, Congress should re-enact it while delegating to the Justice Department, or a new administrative body, responsibility for determining which states are subject to oversight and which racial groups are protected in each state. The new Section 5 would take effect only after the agency resolves these questions.
The delegation solution has political, legal and policy advantages over the alternative ‑ in which Congress tries to craft a new coverage formula.