Here is a guest post from Guy Charles:
- It is time for the civil rights community to step up. They have dodged a bullet with the Court’s decision to uphold the constitutionality of section 5. But the constitutionality of section 5 hangs on a thin reed. All nine justices agreed that the constitutional costs imposed by section 5 are sufficiently serious even under the least demanding rationality review. The civil rights community cannot simply hope to wait out the conservatives. If the four liberals on the Court truly believe what Chief Justice Roberts wrote on their behalf in NAMUDNO, the future for the current regulatory scheme is dim.
So far, the debate over section 5 has been fought over whether we have made sufficient progress or not as a country to get rid of section 5. This is not a useful question to ask. We can both acknowledge the progress we’ve made and focus a voting rights approach that befits the 21st century. So what should the civil rights community push for?
It could seek a modification of section 5’s geographical targeting approach, which generally focuses on states with large populations of voters of color: remove some states from the South, add in some states from the North, and voila. Only this would be a mistake. Even if Congress were politically able to do this, geographical targeting depends upon the ability to predict where voting rights problems will arise, which we cannot do accurately anymore. Additionally, a geographical approach assumes that the targeted states are out to harm voters of color, which is generally no longer true. Perhaps most pertinently, according to the Court in NAMUDNO geographical targeting departs from the “fundamental principle of equal sovereignty” by “treating states differently.”
I would advocate an alternative two-pronged option. First, the civil rights community should focus on solutions for voting problems in federal elections instead of instead of looking at the race of voters. For example, if there are voting registration problems, let’s have permanent federal registers for federal elections and same day registration. If there are problems with ballot design, how about one ballot design in federal elections modified only for regional considerations. They should also look for reasonable compromises where they can. For example, if conservatives want voter IDs in federal elections, let them have it as long as IDs are provided at government expense. This approach would help voters of color because they are disproportionately impacted by ostensibly neutral voting rules and problems in the voting process.
Second, the civil rights community might also advocate for the creation of an administrative agency to regulate elections in the United States. I am less sure about this approach but it might be worth exploring. This agency would be forward-looking and would have both investigatory and remedial powers. It would protect citizens against race-based discrimination and might focus on the very local level, such as school boards and municipalities, where voting rights issues might go undetected.
I’m sure that there will be plenty of ideas out there and better than what’s recommended here. What the civil rights community should not do is simply preserve the status quo. It is time for the civil rights community to step up to the plate and lead us once again, this time into the 21st century.