If the Court Strikes Down Section 5 of the Voting Rights Act: An Online Reuters Symposium

In cooperation with Reuters Opinion, I have organized an online symposium on what should happen if the Supreme Court strikes down section 5 of the Voting Rights Act, an issue the Court is considering in Shelby County v. Holder, a case to be argued Feb. 27.  My initial commentary begins:

Reuters VRA symposiumWe celebrated Martin Luther King Jr.’s birthday last week in the shadow of a fight over the constitutionality of a key provision of the Voting Rights Act. The Supreme Court will soon hear arguments in Shelby County v. Holder, raising the question whether Section 5 of the act, which requires that states and localities with a history of racial discrimination in voting get permission from the federal government before making any changes in election procedures, is now unconstitutional. The smart money is on the court striking down the law as an improper exercise of congressional power, although Justice Anthony Kennedy or another justice could still surprise.

If the court strikes Section 5, the big question is: What comes next? Reuters has invited a number of leading academics, who focus on voting rights and election law, to contribute to a forum on this question. In this introductory piece, I sketch out what may happen and what’s at stake.

The initial responses are now up, and more will appear in coming days.  Here are the first posts, with a snippet from each:

Opting into the Voting Rights Act by Heather Gerken on Wed, Jan 30, 2013, 9:55 PM UTC: “I’m all for protecting every voter. But I would hate to lose what Section 5 provides – protections for racial minorities, in particular. The other protections against racial discrimination in voting – most notably, Section 2 of the Voting Rights Act – are too costly and cumbersome to protect racial minorities from the practices that Section 5 now deters.’

Why Section 5 survives by Abigail Thernstrom on Wed, Jan 30, 2013, 9:58 PM UTC: “Reuters has asked: If Section 5 is declared unconstitutional, what should come next? The answer depends on precisely what the court has to say. But those who are fearful that a majority of justices will agree that Section 5 is yesterday’s emergency legislation might think about the following question: Will Justice Anthony Kennedy (the pivotal vote) want banner headlines in the mainstream media that, however misleadingly, read, ‘Court declares VRA [Voting Rights Act] to be unconstitutional’? The ‘smart money,’ I believe, will bet that the answer is no. And Section 5, in some form, will survive.”

The next Voting Rights Act by Spencer Overton on Wed, Jan 30, 2013, 10:01 PM UTC: “Unfortunately, Hasen is helping opponents of Section 5. He gives justices allowance to ignore facts and law supporting Section 5, and instead perhaps think: Scholars anticipate our court will invalidate Section 5, so we can invalidate it without seeming too extreme or too political.”

Delegate the oversight formula by Christopher S. Elmendorf on Wed, Jan 30, 2013, 10:10 PM UTC: “If the court strikes down Section 5, Congress should re-enact it while delegating to the Justice Department, or a new administrative body, responsibility for determining which states are subject to oversight and which racial groups are protected in each state. The new Section 5 would take effect only after the agency resolves these questions.”

Focus on new legislative approach by Richard H. Pildes on Thu, Jan 31, 2013, 2:53 AM UTC: “If the Supreme Court invalidates Section 5 of the Voting Rights Act, its defenders may be tempted to tinker at the margins and reconfigure it in a way that could comply with the court’s decision. Given Section 5’s symbolic status and historical importance, some will likely feel a strong pull to ‘save” it by staying within the essential framework of the current Section 5, while updating various details. But stepping outside the model of Section 5 and embracing a different legislative approach for national voting-rights legislation might be far more effective.”



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