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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
Sunday, July 31
The Voting Rights Act, Then and Now
With the 40th Anniversary of the Voting Rights Act of 1965 coming up this week, there's been a great deal of attention to what this landmark law has accomplished and whether it's still necessary. On the first question, virtually everyone across the political spectrum agrees that the VRA has been a monumental success, particularly in stopping the exclusion of African Americans in the South. But there's enormous disagreement over whether the Act remains vital to promoting political equality, a debate that's likely to intensify in coming months as key provisions of the VRA come up for renewal.

In this editorial, the Nation lauds the VRA for "tearing down the barriers to equal opportunity at the ballot box," and "remov[ing] the essential political mechanisms that maintained segregation and white supremacy." It proceeds to argue that the VRA retains its importance today, citing as an example the Georgia legislature's recent enactment of a strict voter ID law. Under Section 5 of the VRA, one of the expiring provisions, Georgia's ID law must be "precleared" by the U.S. Department of Justice before it can go into effect. A preclearance request is now pending, with a decision expected in the next week or two. In the same vein, Rose Russell of the Toledo Blade argues for the continuing vitality of Section 5, opining that without this provision we'd see "events like those that led to the creation of the Voting Rights Act in the first place." She goes so far as to suggest that this provision of the VRA, set to expire in 2007, be made permanent.

Taking the opposing view, Abigail Thernstrom argues against reauthorization of Section 5 in this New York Sun op-ed. Prof. Thernstrom agrees that the VRA was vital in dismantling the system of racial exclusion in the South, but argues that Section 5's preclearance requirement has outlived its usefulness. She also disputes whether Section 5 was ever necessary in places like New York City, three boroughs of which were included as the result of low turnout in the 1968 election. Now, she argues, the VRA is being used to require "wildly racially gerrymandered districts that protect minority candidates from white political competition."

Such criticism of Section 5 isn't limited to those on the right like Thernstrom. In a recent essay entitled "Is Section 5 of the Voting Rights Act a Victim of Its Own Success?," Prof. Sam Issacharoff suggests that the answer to his question may be yes, focusing especially on congressional redistricting and evidence that Section 5 is susceptible to partisan manipulation by officials Washington -- more specifically, that the malleable standard for preclearance may lead the Department of Justice to preclear plans politically advantageous to the party in control of the White House, while denying preclearance to those which are less advantageous.

My take: I think there's something to admire and something to criticize in each of these perspectives. All of these commentators are right to acknowledge that the VRA, including Section 5, was enormously successful in dismantling barriers to minority participation. Where I disagree with Prof. Thernstrom is in her suggestion that racial politics is a thing of the past. As Prof. Michael Pitts persuasively argues in this forthcoming article, Section 5 remains vitally, particularly in discouraging local politicians from adopting practices that would diminish minority political power.

Even at the state level, the move to impose strict voter identification laws demonstrates the continuing need for the VRA. True, it's difficult to demonstrate discriminatory intent with respect to such laws -- state legislators would be too smart to admit that they're adopting such practices in order to exclude blacks or other minorities from voting, even if that were there intent. Yet the available evidence indicates that racial minorities, along with elderly citizens, people with disabilities, and poor people generally will be particularly hard hit by strict voter ID laws, since these groups are less likely to have ID.

On the other hand, Thernstrom and Isaacharoff are right to point out that Section 5 is subject to partisan manipulation by the party in control of the White House and, therefore, the Department of Justice. For this reason, I tend to doubt that the preclearance process will prove to be an effective remedy for measures like the Georgia ID law. Even though this law will likely have a "retrogressive" effect, by serving as a barrier to minority voters' participation, it's extremely unlikely that the Bush II Justice Department will deny preclearance. I hope to be proven wrong in this prediction. But in any event, we should be thinking about other mechanisms, such as the one I suggested here, to take preclearance out of DOJ's hands, at least when it comes to state-level decisions -- I'm more inclined to trust DOJ to administer Section 5 fairly when it comes to decisions made at the local level, where the powers that be in Washington are less likely to have a partisan interest in the consequences.

Finally, while I largely agree with Russell's Blade op-ed on the continuing vitality of the VRA, making the expiring provisions permanent is an uncommonly bad idea. The fight to reauthorize the expiring provisions of the VRA will be difficult, but even more difficult will be the legal fight that follows, to uphold those provisions against constitutional challenge -- a battle that will likely wind up in the U.S. Supreme Court. The concerns that Sen. Edward Kennedy has raised about Supreme Court nominee John Roberts' record on voting rights only heightens the importance of this fight. If Section 5 were made permanent, it would substantially increase the likelihood of this provision being held unconstitutional by the Supreme Court, on the ground that it's not "congruent and proportional" to the constitutional harm. In effect if not intent, then, Russell's suggest amounts to a poison pill for the VRA, one that Congress should reject.

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Moritz College of Law The Ohio State University