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So the VRA Is Gutted. Here's How to Still Fight Voter Discrimination

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Retirement with dignity was denied to core provisions of the Voting Rights Act. If ever a statute rose to iconic status, a super-statute amid a world of ordinary legislation, it was the Voting Rights Act. In the course of not quite half a century, the Act was pivotal in bringing black Americans to the broad currents of political life.  

What Lyndon Johnson introduced to America as the crown jewel of the civil rights era has now been struck down by the Supreme Court as timeworn, no longer constitutionally responsive to the America that the Act itself helped create. According to the Court in Shelby County v. Holder, requiring certain jurisdictions to obtain Department of Justice approval before altering voting procedures because of civil rights era concerns could no longer be justified. Shelby County, Alabama, for instance, was still subject to administrative preclearance because less than 50 percent of its citizens voted in the 1964 presidential elections. For the Court majority, that was simply too long ago.

The Court’s unromantic constitutional ruling should prompt rethinking whether the regulatory model of prior federal approval of voting changes is truly responsive to the voting problems of today. The critical assumptions of the challenged provisions of the Act corresponded to a world in which overt racial exclusion meant that black citizens faced first order impediments to just getting registered to vote, and where only the federal government could assume the responsibility to challenge the persistence of Jim Crow. Different times call for different measures and the Court’s decision, however wrenching, should compel taking stock of what has changed.

When passed in 1965, the Act was the most vibrant of the civil rights laws. Section 4 singled out the states based on votes cast in the 1964 presidential election—a convenient category that included the core of the Confederacy. Within those jurisdictions, literacy tests and other such “devices” were banned, and under Section 5 those states would have to obtain approval in Washington (“preclearance”) before trying to rejigger their election practices. The combination of Sections 4 and 5 paved the way for the modern black franchise by putting the political heart of Jim Crow under federal receivership. Section 5 concentrated enforcement power exclusively in the federal government that would administer this complex system.

The overt racial practices that prompted this historic legislation passed from the scene, a tribute to the effectiveness of the Act. But preclearance was always a defensive mechanism designed to lock in gains, not to innovate under changed circumstances. As black political mobilization took off, Section 5 receded. The preclearance structure played only a bit part in the 1980s, when newer provisions of the Act were used to allow minority candidates to win office in minority-dominated districts. When voting struggles over voter ID and restrictions on early voting moved to the partisan battleground states in the last decade—in states such as Ohio, Wisconsin, Pennsylvania, Colorado, Florida—Section 5 was not implicated. By the time of the Court’s decision in Shelby County, preclearance under Section 5 had prominence primarily as an added partisan wedge in decennial redistricting battles.  

In the past 12 years, only 70 or so objections had even been lodged under the Act. For Chief Justice Roberts, that confirmed the Act had run its course; for Justice Ginsburg in dissent this proved how successful the Act continues to be in preventing backsliding—each a counter-factual incapable of disproof.  

Where to now? Preclearance under Section 5 survives, but only as an empty shell without the Section 4 trigger. One could try to salvage Section 5 by finding a new trigger corresponding to events of the past 50 years. For champions of the status quo, the invitation was just to find some modern equivalent that would yield the same old—the Court offering a fool’s errand to a dysfunctional Congress.  

Notably, that was not President Obama’s reaction. A former law professor and shrewd political analyst, the President looked beyond the past to ask “Congress to pass legislation to ensure every American has equal access to the polls.” This is not a description of a renewal of the geographically bounded Section 5 but a wise acknowledgment, based on experience, that Ohio is as likely to mess with the right to vote as any state in the South, and that modern times need modern remedies.  

It is time to look beyond the race discrimination model, just as the President intimated. In the less heralded voting case this term, Arizona v. Inter Tribal Council of Arizona, Inc.,  the Court struck down an attempt by Arizona to require all prospective voter registrants to provide some verification of citizenship. Arizona’s claimed interest in stopping illegal aliens from voting ran headlong into a congressional requirement that required states to use a standardized voter registration form for federal elections, one that had no such citizenship verification. Writing for seven members of the Court, Justice Scalia gave the most expansive account to date of federal power under the Elections Clause, Article I, Section 4 of the Constitution, which provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations ….”

Unlike the issue in Shelby County, the Elections Clause is an affirmative grant of federal power over all federal elections, rather than a limited remedial mandate under the anti-discrimination norms of the 14th and 15th amendments. Per Justice Scalia: “all action under the Elections Clause displaces some element of a pre-existing state regulatory regime, because the text of the Clause confers the power to do exactly (and only) that.” In the pithy words of Judge Richard Posner, when acting under the Elections Clause, “Congress was given the whip hand.”

A new Elections Clause approach would forgo the attempt to freeze the status quo by forcing prior federal approval. Instead Congress could create a system of disclosure, as under the securities laws, making sure that all changes in voting practices for federal elections are recorded electronically with a suitable federal agency. States could implement the change after having some state official attest to why it was needed, and what would be its likely impact on voter registration, turnout, or ease of administration. This would force transparency and accountability on administrative conduct prompted by partisan or other malevolent objectives.

The advantages over the VRA are significant. First, the new approach would not be triggered by racial concerns, would not be geographically confined and would not be limited to specified practices, or even to an attempt to lock in the status quo. Second, the burden on election officials would be limited: Election administrators would be required only to electronically submit a short account of what they are actually doing. There would be no preclearance in the Section 5 sense; all changes could be implemented immediately subject to subsequent challenge and potential court injunction. Yet the combined effect of these modest provisions would be to lessen the litigation burden on those challenging suspected official misconduct—that is, mainly the candidates, individuals, and organizations that believe they are adversely affected. The critical work of spotting changes would be greatly simplified and the burdensome discovery task of establishing the state justification for conduct would be eliminated. State officials could be challenged either on the grounds that the stated reasons were pretextual or that there was insufficient correspondence between the stated aims and the means selected—either of which could be effectively scrutinized even under the relatively forgiving rational relations standard of judicial review.

Perhaps most significantly, like the securities law approach, this disclosure plus ex post challenge regime allows both private and public enforcement. In 2012, for example, almost all the efforts to ratchet up voter identification requirements or shorten voting times were defeated, almost all by private parties or public interest organizations. The Justice Department was a secondary player and the preclearance provision of the VRA was rarely implicated in the battleground arenas. At the same time, this proposal (as well as the Court’s ruling in Shelby County) leaves unaffected other parts of the VRA as well as direct constitutional challenges.  

In 1965, there were few actors other than the Department of Justice could come to the rescue of beleaguered minority voters. Today that is no longer the case. A strategy aimed at relieving the litigation burden on after-the-fact challenges should not only ease the burden on private enforcement but create a corresponding deterrent effect on wayward state officials.

Samuel Issacharoff is the Reiss Professor of Constitutional Law, New York University School of Law. An extended version of this essay will appear in Harvard Law Review in November.