Dan Tokaji's Blog
Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Tuesday, August 9
Should the VRA Be Strengthened?
In the wake of the Voting Rights Act's 40th birthday, one of the questions that will surely be asked is whether there are aspects of the Act that should be changed. On Monday, Attorney General Alberto Gonzales emphatically declared the Administration's support for the VRA before at an ABA meeting, saying that "this Administration looks forward to working with Congress on the reauthorization of this important legislation." While this alone doesn't mean that the expiring sections of the VRA will be reauthorized before their 2007 expiration, it does provide considerable reason for optimism among voting rights advocates.

The Administration's declared support for the VRA renewal provides the opportunity to ask whether there are parts of the Act that should be amended or strengthened, as took place in 1982. Cassandra Butts of the Center for American Progress argues here that Congress should amend the VRA to reverse two Supreme Court cases giving the Act a limiting interpretation. One of those cases is Reno v. Bossier Parish School Board (2000), which made it more difficult to show discriminatory intent under Section 5 of the VRA. The other is Georgia v. Ashcroft (2001), under which a redistricting plan may be deemed "nonretrogressive" in its impact, and therefore compliant with Section 5, even if it reduces the number of "safe" minority districts.

One of the things to take into consideration, in determining whether such strengthening amendments should be adopted, is the impact on the court fight that is sure to follow reauthorization of the VRA. That's especially true given the likely ascension of Judge Roberts to the Supreme Court. As Rick Hasen pointed out in this L.A. Times op-ed, Roberts' memos as a young attorney in the Reagan Administration indicated a hostility toward the strengthening amendments to the VRA that were ultimately adopted in 1982. Would a Supreme Court with Roberts on it be more likely to hold Section 5 unconstitutional, if the Act were amended to reverse Reno v. Bossier or Georgia v. Ashcroft?

I hope that the answer to this question is no ... but it may not be. The post-O'Connor Court might well think that the VRA (if amended to reverse prior interpretations) violates the requirement that civil rights statutes be "congruent" and "proportional" to the constitutional harm. That doesn't mean that the VRA should simply be renewed as is. It does mean that voting rights advocates should carefully balance the benefits from a stronger VRA against risks of it being held unconstitutional, in deciding whether to press for amendments of the type that Butts advocates.

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