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, May 3
Pildes on Voting Rights Act Renewal
Leaders of both parties introduced legislation yesterday to renew the portions of the Voting Rights Act of 1965 now scheduled to expire in August 2007. The A.P. has this report. Foremost among the expiring provisions is Section 5, which requires that certain covered jurisdictions obtain preclearance of electoral changes, either from the U.S. Department of Justice or a federal court, before they may go into effect. The bill introduced yesterday would for the most part preserve VRA preclearance in its present form.

While it seems very likely that Section 5 will be reauthorized, the forthcoming debate provides a rare opportunity to assess whether there are modifications that would better protect voting rights. Rick Pildes addresses this question in this essay, entitled "The Future of Voting Rights Policy: From Anti-Discrimination to the Right to Vote," which was presented at the Howard Law Journal's Branton symposium in the fall. Here's an excerpt from Prof. Pildes' abstract:
Congress is now considering whether to renew the Voting Rights Act. Though critical issues concerning American democracy are at stake, and the renewal process is the moment at which the nation should focus on voting rights, there is no constituency, inside Congress or outside, to raise the serious policy issues that should be addressed. Instead, Congress appears to prefer to renew the relevant provisions largely in their current from, as quietly as possible, while avoiding all the hard questions inevitably present. Doing so not only abdicates policymaking responsibility, it increases the likelihood that the Supreme Court will later find the renewed Act to be unconstitutional.

This essay raises the questions that Congress should address. There are two distinct models for national legislation to protect voting rights. The model of the VRA selectively targets certain areas of the country (9 states, several counties and towns), for a unique form of unusually intensive federal oversight.... The alternative is reflected in laws that post-date the Voting Rights Act, such as the Help America Vote Act and the National Moter Voter Registration Act. This essay suggests that this alternative model -- national, uniform laws to protect the right to vote as such -- is better suited to the problems of voting rights today than the model of Section 5 of the Voting Rights Act, which was well designed for the era in which it was created but is less well suited to the problems of today.
My own, more modest suggestions for Section 5 are available in this article, also for Howard's Branton Symposium, entitled "If It's Broke, Fix It: Improving Voting Rights Act Preclearance." I completely agree with the legislators and civil rights groups as to "the importance of ensuring that the hard-won voting rights of minorities are not eroded." But I also think it's important to take a hard look at how well the preclearance process, in its present form, is serving this end. I therefore share with Prof. Pildes the hope that there will be a serious and robust congressional consideration of preclearance, and whether there are ways in which the existing regime might be altered to more effectively protect voting rights. Such a debate is important not only to ensure the efficacy of the legislation that emerges, but also to protect a renewed VRA from the constitutional attack that is certain to follow.

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Moritz College of Law The Ohio State University