Kang: The Continuing Relevance of Section 5

Michael Kang sends along the following guest post:

    Thanks to Rick Hasen for hosting this discussion of NAMUDNO, which I’m happy to join near its close. I’ve enjoyed surveying academic opinion about the Voting Rights Act and NAMUDNO, but I’m less skeptical than many of my colleagues about Section 5’s continuing relevance. Of course President Obama’s election was a watershed moment in the evolution of American racial politics that mark today as importantly different from 1965. Of course the crisper tailoring of the Section 5 coverage formula and bailout provisions is eminently sensible, as are calls for deeper attention to the evolution of what Dan Tokaji calls the “new vote denial” and to the development of broader guarantees for an affirmative right to vote. However, as much as things have changed in many parts of the country, it is easy to forget that things have changed much less in others, as Nate Persily’s brief in NAMUDNO points out. Where I live, in Georgia, new measures that threaten to limit the franchise are regularly legislated, and while these proposals may be motivated at their base by partisanship, the effective targeting of these measures against certain populations of voters is no mistake. DOJ’s refusal to preclear Georgia’s requirement of proof of citizenship, following the presidential transition, helps remind us how Section 5 can make a meaningful difference along these lines.
    The aftermath of NAMUDNO is less likely to be a major overhaul of, or a major shifting away from, the Voting Rights Act, but instead another incremental adjustment and peaceful co-existence of the VRA with new regulatory initiatives. I’m skeptical that Congress will be much less deferential to the VRA than a Court staffed by politically insulated Justices who appeared ideologically hostile to it during oral argument before ultimately issuing a more careful, perhaps “statesmanlike” decision. But the continuing relevance of the VRA need not crowd out new reform extensions, and indeed, one might reasonably hope that new extensions supplement, rather than necessarily supplant, and draw political strength from the VRA’s historical pedigree.
    A looming question is what NAMUDNO signals for the viability of Section 2. The legal debate about the constitutionality of the VRA, post Boerne, until rather recently focused on Section 2. Section 5 seemed on safer ground with its limited coverage, preclearance review limited to retrogressive changes, and sunset and bailout provisions. Debate about NAMUDNO has softened resistance to challenges against the VRA and potentially cleared political space for the Court to strike down Section 5’s more vulnerable sister. However, this path doesn’t seem the Roberts Court’s style, which has more often been the crafty use of standing, as-applied challenges, and here in NAMUDNO, implausible statutory evasion, to achieve its policy ends by indirect means. The Roberts Court already carved back Section 2’s reach earlier this Term in Bartlett v. Strickland, but its response to future challenges is likely to entail similar limitations of the law’s substantive reach, but executed carefully to avoid the unwanted headlines that follow from directly overruling precedent or striking down Section 2. This may well be the path taken by the Court with respect to Section 5 following NAMUDNO, at least if Nate Persily is correct about the Court’s bailout analysis. Although the Ricks– Hasen and Pildes –compare NAMUDNO to Bush v. Gore, the NAMUDNO decision reminds me of Wisconsin Right to Life v. FEC. Like WRTL, NAMUDNO eschews sweeping invalidation but may just as well undermine Section 5’s foundations over the long run, if Nate is right, by chipping away at its application case-by-case through judicially mandated bailout.
    Finally, the shift in academic opinion, at least in legal circles, about the Voting Rights Act is striking to consider. Academic opinion has shifted from nearly universal support a decade ago, to sober concern about its constitutional vulnerability a few years ago, to what now seems to have galvanized during debate leading up to and following NAMUDNO into a skeptical consensus among academics against the Voting Rights Act’s usefulness going forward. The Court’s decision in NAMUDNO will prove astoundingly canny if the shift in academic opinion surrounding the case is a harbinger of a parallel shift still to come in political and public opinion. Others have speculated that NAMUDNO is a warning shot intended to spur political reconsideration of the VRA, and a quick review of academic reaction suggests the warning shot has already achieved the intended doubts and alarm among us “early adopters.” But I wonder whether Congress and the civil rights community are likely to follow academic opinion following NAMUDNO any more than they followed it during the 2006 renewal process. I have my doubts, particularly when academic prognostications on these issues, while substantively sensible on paper, have been noticeably inaccurate in predicting actual results on the field.

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