Deal or No Deal? – Gerken
I thought I’d offer a quick follow-up on Dan Tokaji’s typically thoughtful post. As Dan correctly notes, there’s some disagreement between the civil rights community and academics about whether the deal on the table is a good one. To be sure, neither group is monolithic, but virtually all the mainstream civil rights groups seem to have endorsed the deal, whereas there aren’t many academics offering full-throated support for the bill in its current form. Indeed, if you privately asked academics the question made popular by NBC’s addictively awful show, “Deal or No Deal?”, I wonder how many academics would wholeheartedly urge the civil rights community to accept the deal.
There are, however, at least two things inhibiting the type of vigorous debate that Dan rightly points out ought to occur. The first is, believe it or not, modesty. It’s not like law professors have a comparative advantage in counting votes and brokering legislative compromises. The danger, of course, is that we become like those annoying “Deal or No Deal” audience members who urge hapless contestants to turn down massive amounts of money for a risky pursuit of the whole jackpot. After all, it is no mean accomplishment in this political climate to persuade Congress to renew the Voting Rights Act some 38 years after its original passage. Not only will Section 5 be renewed in toto, but Congress will prune back two Supreme Court decisions that have caused a great deal of consternation in the civil rights community. Efforts to tinker with the deal might sink it, and the civil rights community could find itself negotiating next year with a much weaker hand than it now holds.
The second reason academics may be reluctant to intervene is that so many of us genuinely believe in the Act, its aspirations, and its accomplishments. If the deal is going to go through regardless of what a few academics think about its merits, why allow the perfect to be the enemy of the good? (I’ll spare you the hand wringing on what these choices mean for us in our role as academics). As Dan mentions, I think there is a better way to administer Section 5, a strategy that is constitutionally more defensible and does a better job of protecting minority voters and deploying civil-rights enforcement resources. But I would certainly prefer the current bill to allowing Section 5 to expire.
The last time Section 5 was up for renewal in 1982, the civil rights community faced a similarly difficult choice. During the early part of the process, the deal on the table was far from ideal. At the time, many thought it was as good a deal as they could get with Republicans wielding control in the Senate and Ronald Reagan holding the presidency. There is a story- perhaps apocryphal – of the major players in the civil rights community meeting in a single room to debate whether to accept the deal. Though the majority thought they ought to accept the deal, in the end the civil rights community continued to press the case for tougher standards and persuaded Congress to enact a far stronger Voting Rights Act than existed prior to 1982. The 1982 amendments, coupled with a very helpful decision by Justice Brennan interpreting them, dramatically changed the rules of redistricting and resulted in the election of an unprecedented number of black and Latino candidates during the 1990s.
This may not be 1982 and it may not be possible to do any more for minority voters than the current bill does. At the very least, however, we all should be frank about the deal that is being cut so that the extension of the Voting Rights Act represents the beginning of this conversation, not the end. There is a lot to praise in the current bill. But it’s far from perfect, a point that tends to get lost in the press releases and triumphalist rhetoric we’ve seen in this debate. It does nothing to rein in the increasingly politicized Department of Justice, which has granted several preclearance requests under circumstances that have led many to think that the interests of the GOP, not minority voters, guided the decisions. It leaves in place a creaky, top-down regulatory system that cannot adapt quickly to changing political realities, let alone deal with many of the problems encountered by minority voters in the 2000 and 2004 presidential elections. Most seriously, it requires supporters of the Act to gamble that the coverage formula- the lynchpin of Section 5- will survive Supreme Court review. Political deals always require hard choices, but it would be a shame of all of the energy behind renewal evaporated the moment the bill is passed. The one thing that the academics and practitioners who support the Act ought to agree on is that we shouldn’t stop here.
–Heather Gerken, Professor of Law, Yale Law School
Deal or No Deal? – Gerken