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
Wednesday, November 2
 
Should the VRA Be Amended?
The answer is yes, according to Brenda Wright of the National Voting Rights Institute and Mark Posner of American University (and formerly of the Department of Justice). Both of them testified before the House Judiciary Committee yesterday, arguing that Section 5 of the Voting Rights Act should be amended to correct the Supreme Court's interpretation in Reno v. Bossier Parish School Board (2000).

In Bossier Parish, the Court held that the fact that an intent to discriminate based on race isn't sufficient to deny preclearance of voting changes under the VRA. The Justice Department thus can't block a districting plan that's intended to diminish minority voting strength. In Bossier Parish itself, blacks constituted 20% of the population but there had never been a black elected to the school board. There was evidence that the school board meant to keep blacks off the board. But according to the Supreme Court, this wasn't enough to deny preclearance. What must instead be shown is that the plan has a retrogressive purpose -- in other words, that it's meant to make racial minorities worse off than they were before -- or a retrogressive effect.

It will obviously be the rare case in which a plan can be shown to have a retrogressive purpose but not a retrogressive effect. Thus, as a practical matter, Bossier Parish renders the "intent" prong of Section 5's test a virtual nullity. Wright and Posner make strong arguments that Congress should amend the law to reverse this interpretation.

The next hearing before the House Judiciary Committee is scheduled for November 9.

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Moritz College of Law The Ohio State University