Opinion

The Great Debate

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.

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.

Opting into the 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.

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.

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.

On voting, listen to John Lewis

President Barack Obama emphasized the need to modernize the U.S. election system in his Inaugural Address. One bill to do just that is set to be introduced Wednesday by the civil rights hero Representative John Lewis (D-Ga.) — who knows a thing or two about how to expand democracy.

Under his reform plan, states would have to take responsibility to make sure that every eligible voter is on the rolls. How? By taking existing computerized voter rolls, and expanding them with names voluntarily collected when citizens deal with government — including the Department of Motor Vehicles for drivers’ licenses, the Social Security Administration or other agencies. Any voter could opt in with the click of a mouse.

The proposed bill would bring our antiquated system into the 21st century. The  “Voter Empowerment Act,” introduced by Lewis with Rep. Steny Hoyer (D-Md.) and Senator Kirsten Gillibrand (D-N.Y.), could transform the way we choose our leaders.

GOP v. Voting Rights Act

The Republican Party is in danger of reaping what it has sown.

Much has been written about the GOP’s problem with minority voters.  Quite simply, the party has managed to alienate every nonwhite constituency in the nation.

This is not an accidental or sudden phenomenon. Ever since Republicans chose almost 50 years ago to pursue a Southern strategy, to embrace and promote white voters’ opposition to civil rights, the party has been on a path toward self-segregation.

Successive Republican administrations have pursued agendas that included retreating on civil rights enforcement and opposing government programs that increase minority opportunity. That steady progression culminated in Mitt Romney’s disastrous showing among African-American, Latino and Asian voters.

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