Reuters Opinion has posted my latest commentary, the last in the symposium on the Shelby County case. It concludes:
If Section 5 really is no longer needed, that’s a judgment for Congress to make. The states covered by Section 5 are hardly powerless, and there’s no reason now for the Supreme Court to substitute its judgment for that of Congress. The court need not protect states that did not take steps to protect themselves.
More to the point, the law is scheduled to end, or sunset, in 18 years. At that point, as in 2006, opponents of Section 5 will have congressional inertia on their side.
If, as we all hope, Section 5 is no longer needed, it can then die of natural causes. But it should not be subject to preliminary execution by the Supreme Court.
Here are all the commentaries in the series:
Richard Hasen says that if the Supreme Court kills Section 5, which insures that states or jurisdictions with a history of voting discrimination need federal approval for any changes in election law, the big question will be: What comes next? Reuters has invited leading academics who focus on voting rights and election law to participate in a forum on this important issue Commentary
Richard Hasen asks why the decision on Section 5 is for the Supreme Court to make and not the political branches of government. Commentary
Janai S. Nelson says that Section 5 makes sure that race, the elephant in the room for much of U.S. election law, is discussed openly and thoroughly. Commentary
Guy-Uriel E. Charles and Luis Fuentes-Rohwer say that If the court does strike down Section 5 it will give Congress an opportunity to update the act for the 21st century. Commentary
Morgan Kousser writes that five-sixths or more of the cases of proven election discrimination from 1957 through 2013 have taken place in jurisdictions subject to Section 5 oversight. Commentary
Franita Tolson says that if the Supreme Court invalidates Section 5 it would be a clear rejection of broad congressional authority to regulate state and federal elections. Commentary
Michael Pitts says that on the local level, there could be widespread retrogression – from redistricting plans that end ‘safe’ districts to cities annexing suburban white populations to reduce minority voters’ influence. Commentary
Justin Levitt believes that Section 5 does not demand utopia. It asks only that new laws not make things worse. Commentary
Heather Gerken says that other voting protections against racial discrimination are too costly and cumbersome to protect minorities from tactics that Section 5 now deters. Commentary
Abigail Thernstrom wonders if Justice Anthony Kennedy, the pivotal vote, wants banner headlines that read, “Court declares Voting Rights Act unconstitutional”? Commentary
Spencer Overton says that we need new protections. The U.S. is near the bottom of advanced democracies in voter participation. Commentary
Christopher Elmendorf says that the Justice Department or a new panel should be responsible for deciding which states are subject to review. Commentary
Richard Pildes says that stepping outside the Section 5 template and embracing a model with universal protections for the right to vote may be far more effective. Commentary