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 invalidates Section 5 of the Voting Rights Act, its defenders may be tempted to tinker at the margins and reconfigure it in a way that could comply with the court’s decision. Given Section 5’s symbolic status and historical importance, some will likely feel a strong pull to “save” it by staying within the essential framework of the current Section 5, while updating various details. But stepping outside the model of Section 5 and embracing a different legislative approach for national voting-rights legislation might be far more effective.
There are now two models for national voting legislation. Section 5 reflects the first template: the race-based, Civil Rights model for protecting the right to vote. This was born out of an earlier era’s historic circumstances, but also reflects the political and constitutional constraints of that era. Enormously effective and easily justified in its early years, Section 5 – and the Civil Rights model it reflects – has also become increasingly limited in its capacity to address many of today’s voting problems.
The alternative legislative model provides universal protections for the right to vote as such for all Americans nationwide. The few laws related to voting that Congress has more recently enacted have taken this newer form. The Help America Vote Act of 2002 (HAVA) and the National Voter Registration Act of 1993 (NVRA), for example, are both general, universal national laws that protect the right to vote of all citizens.
This is a shift from the Civil Rights model, which instead narrowly targets only race-based infringements of the right to vote, and only in those parts of the country that once had a history of racial disfranchisement.
