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Here’s how Congress could fix the Voting Rights Act

Lyndon Johnson, left, who pushed through the Voting Rights Act in 1965, huddles with Martin Luther King Jr. (Yoichi R. Okamoto / LBJ Library)
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The Supreme Court dealt the Voting Rights Act a serious body blow Tuesday, but it did leave Congress an out. The court said, "Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions."

That raises a question: should Congress update the Voting Rights Act in light of today's ruling, as President Obama has already called for it to do? If so, how? And if not, what sort of system should take its place?

Where the act stands

First, let's be clear on what exactly the Supreme Court struck down. Currently, the Voting Rights Act provides two avenues for challenging voting laws. One is Section 2, which bans discriminatory voting procedures or practices, and which is enforced through litigation. Often, the federal government acts as plaintiff to challenge local voting rules, but private individuals who've been harmed by voting rules can also file suit.

The second is Section 5, which is the "preclearance" provision of the law. It basically forces areas with a history of voter discrimination to submit to extra federal supervision. The Justice Department has to "preclear" any changes to voting laws in particular areas.

How do you get on the Section 5 list? That's covered by Sections 3 and 4. It's Section 4, which relies on historical tests -- like "did this jurisdiction require a literacy test to vote in 1964?" -- that was struck down today. Most of the former Confederacy, for instance, was included because of Section 4. Now that Section 4 has been struck down, those states are free and clear.

But Section 3 wasn't struck down. Section 3 requires preclearance in cases where judges find, or jurisdictions admit to, constitutional violations in the voting process. For example, Arkansas was bailed in when a U.S. district court found that Arkansas's voting laws intentionally and unconstitutionally discriminated against African-Americans. The court invoked Section 3, requiring Arkansas to preclear changes to voting laws going forward. Travis Crum wrote an excellent law note in the Yale Law Journal in 2010 explaining how Section 3 works, if you're interested.

So the practical effect of the decision is to take a lot, but not all, of the jurisdictions currently on the preclearance list off it. But the decision did not do away with preclearance entirely, and it leaves open litigation as a way to remedy any discrimination that arises in any jurisdiction, whether or not it's subject to preclearance.

Patching the act

The most obvious way to reverse the effects of the court's decision would be to change Section 4. Spencer Overton at George Washington University Law School has outlined a plan to do just that. "Congress should update the coverage formula to require that states and localities with recent voting rights violations preclear new election law changes," he writes. "In addition, states and localities that violate voting rights in the future should be required to preclear their election law changes."

One way to base preclearance on findings of specific violations, as Overton proposes, is to expand Section 3. Rick Pildes, a voting law expert at NYU Law School, explains, "One could imagine variations of that kind of structure, where coverage is tied to specific findings of violations in particular places over recent periods of time. You could modify, or work to expand, Section 3."

Another option, which would be unquestionably constitutional, would be to just subject everywhere to preclearance. If there's no formula for determining who's covered, then the formula can't be unconstitutional. "I guess that's doable, but the question is how much bang for the buck are you getting as opposed to alternatives," says Pildes. "I doubt if we were starting on a blank slate we'd be thinking in terms of a process like preclearance."

Weaponizing Section 2 -- and the courts

Pildes's preferred reform would scrap preclearance in favor of a more expansive litigation approach. "I would ideally like to see federal legislation that would require that regulations of access to the ballot box to be demonstrated to be genuinely necessary to realize a legitimate state interest," he says. "I want a statute that creates, and protects, a right to vote, and requires state legislation to meet an exacting standard of scrutiny, and empowers courts to sort out the truly legitimate laws that regulate the voting process from ones that are pretext for partisan, incumbent-protecting, racially discriminatory, or for other purposes."

He thinks that the court system would be well-equipped to handle such a charge, noting that in states not covered by the Voting Rights Act's preclearance sections — like Pennsylvania or Ohio — where voting regulations, such as voter ID laws, cropped up last election cycle, courts were able to block the most egregious offenders. "It's not the case that, absent preclearance, the courts aren't able to act quickly enough to stop them from being implemented if the courts conclude those laws are illegal," he says. There are more than enough civil society organizations, he argues, from the Brennan Center for Justice to the ACLU to the League of Women Voters, standing ready to challenge problematic legislation.

Not so fast, says Kenji Yoshino, a colleague of Pildes's at NYU law. When asked if litigation is enough to enforce the law's aims, Yoshino replied, "Given what we've seen over the past few years I'm not particularly optimistic about that." Despite the fact that comparatively very few preclearances are denied by the Justice Department, he says, the rise in voter suppression in recent years means being able to respond quickly is key. It certainly was in the 1960s, when, Yoshino notes, state laws were changing faster than the judicial system could handle. "It was like wrestling with a shapeshifter," he quips.

Things have gotten better since, but not enough for Yoshino's comfort. Under Section 5, he notes, "The default lies with the state rather than with the plaintiff," when it comes to proving that laws are legitimate and non-discriminatory. "We've really shifted the tilt, so it's tilted against the plaintiff and for the state." Pildes's stronger statue would shift more of the burden onto states to prove they're not discriminating or needlessly impeding voting, and would widen the scope of wrongdoing they'd be sued for. But they'd still need to be sued for anything to happen.

How should redistricting change?

Voting rights experts generally distinguish between "ballot box" issues, such as voter ID requirements, registration rules, early voting, and so forth, and redistricting issues. Pildes's proposed remedy focuses on the former, but the Voting Rights Act affects both. So what should Congress do to ensure that redistricting is done fairly?

Pildes is pretty sanguine about this point. "Whether or not Section 4 exists, redistrictings are going to be challenged, as they are throughout the country, because they are highly visible political acts with highly significant political and policy consequences," he says. "They will continue to be challenged under Section 2, under state constitutional provisions, and through other sources of law."

But this may be a good time to question whether the approach of the Voting Rights Act on redistricting is right at all. Traditionally, the VRA has been interpreted as mandating equitable representation of minorities in legislative bodies, often through the creation of "majority minority" districts. "Supreme Court decisions have held that drawing majority-minority districts may be required to ensure compliance with the Voting Rights Act," as the Department of Justice puts it.

And there's definitely  something to be said for ensuring that minority groups are able to elect candidates of their race or ethnicity. "The critique of descriptive representation is that people have different views, but if there's a person in the room who fits that description, then that person becomes a witness to power, and other people may change the way they talk and think," Yoshino explains. "The famous case is when [former Sen.] Carol Mosley Braun went to the Senate floor after they reauthorized the United Daughters of the Confederacy flag's patent and said, 'This is incredibly discriminatory,' and they reversed themselves, simply because they're ashamed to vote the way they had with someone they directly affected in the room."

But there are real costs to that. Research by Columbia's David Epstein and Sharyn O'Halloran has found that two Republican districts are created for every majority-minority district. Moving away from the VRA's districting model, which promotes majority-minority districts, could end up being good for policy goals held by blacks and Latinos who the VRA exists to help.

Again, there's a tradeoff here, and simply having minority representatives present is unquestionably valuable. But the Supreme Court decision is a good opportunity to consider how much weight we want to place on ensuring that the views of minority groups are represented versus ensuring that members of those groups have an actual seat at the table. It's possible that other options, such as a  proportional representation system where minorities are guaranteed a proportional number of seats in multi-member districts, could do a better job of advancing minority groups' interests than the VRA has to date.