Now that U.S. House and Senate have both voted to renew provisions of the Voting Rights Act, I would like to comment on the nature of our debate.
On one hand, I’ve read thoughtful writing about the coverage formula, bailout, and federalism generally from people like Rick Hasen, Pam Karlan, Nate Persily, and Rick Pildes. While I may not agree with them on everything, I’ve learned a lot from these and other scholars.
On the other hand, the discussion on the election law listserve has sometimes been condescending of members and staffers on the Hill. As academics we sometimes make judgments without having reviewed the complete legislative record ourselves. Not only do we make substantive claims, but we sometimes criticize activists on the style of the debate–as though politics on the Hill should conform to the standard of fairness, decorum, and civility that we expect from our students in the classroom.
My point is not that academics should avoid meaningful conversation about the Voting Rights Act. Instead, I think we should recognize our own limitations as academics and appreciate that there are political elements to both congressional passage and judicial review, and that others may have more expertise in these areas than we do (actually, more of a “different” type of expertise that may be relevant to these contexts). When I sat on the Carter-Baker Commission on Federal Election Reform, for example, I started with an open mind expecting a fair process based on expert testimony and facts–but a political undercurrent existed that I did not appreciate until the end of the process (most of the other commissioners were politicians and “got” the political element all along).
Previous blog entries have acknowledged that some members of Congress critical of the Voting Rights Act may not be acting in “good faith,” but I think the challenge for the academic is to take the next step and figure out how to engage in a fair and honest way without becoming a tool for those who are not acting in good faith. I don’t have any simple answers or guidelines, but I think that humility, appreciation of other perspectives, and awareness of both what we add to the debate and the limitations of our talents are important.
I don’t mean to dodge the substantive questions. I explain my own take in my chapter “The Coverage Curve: Identifying States at the Bottom of the Class” in the forthcoming book “The Future of the Voting Rights Act” (Epstein, Pildes, de la Garza and O’Halloran, eds., Russell Sage Foundation, forthcoming 2006). A shorter 8-page version is in my new book Stealing Democracy: The New Politics of Voter Suppression, pp. 112-120.
To me, many criticisms of the Section 5 preclearance process–such as the assertion that it is too “intrusive,” “excessive,” or “extraordinary”–seem overstated. Preclearance is much less burdensome than litigation, as it enjoys the advantages of ex ante over ex post decisionmaking. Employing a few paralegals at the federal and state levels to identify and prevent problems over a 60-day period is more efficient and inexpensive than the teams of lawyers, years of interrogatories and depositions, legions of experts, and judicial resources that accompany litigation. Similar preventative procedures deter misconduct and reduce litigation costs in other areas of the law, like the Hart-Scott-Rodino antitrust review process and environmental impact statements. While litigation remains essential to resolve some voting rights matters, there is no reason that voting rights law must be relegated to litigation as its sole enforcement tool.
Further, technology has made the preclearance process even less intrusive than it was in 1982 when Congress last renewed the relevant portions of the Voting Rights Act. Modern software that can be used on a desktop personal computer makes compliance with Section 5 easier than ever. Most jurisdictions already own such software–they buy it to comply with one person/one vote requirements. Compliance with Section 5 that 25 years ago demanded weeks of tedious trial and error now requires a few hours.
Some have claimed that the record of discrimination is not sufficiently weighty. But what is the baseline that justifies immunity from preclearance coverage? Is it refraining from spraying voters of color with hoses and tear gas? Certainly, today’s South is more “attuned to black political claims” than it was in the 1960s, but problems still exist in Arizona, Virginia, Mississippi, Louisiana and other parts of the nation that might go unresolved for years absent voting rights protections. Using a 1960s standard of race relations as a baseline for coverage could also encourage some to hype stories about racist conspiracies. As the U.S. Senate Report on the Voting Rights Act Amendments in 1982 explained, requiring that we label “individual officials or entire communities” as racist is “divisive, threatening to destroy any existing racial progress in a community.”
There is no uncontested baseline that clearly separates intolerable racial dysfunction that warrants federal preclearance procedures from improper but tolerable dysfunction that does not justify congressional intervention. Any judicial proclamation that purports to draw such a line is based on nothing other than value judgments that creep dangerously into the political thicket. Does Congress need testimony on 2 or 200 instances of “discrimination” to warrant preclearance coverage in a particular jurisdiction? Must such instances involve intentional discrimination, or will discriminatory impact do? If intent is a requirement, must the evidence establish “Bull Connor” racial animus, or can it simply show that a political operative intentionally excluded voters of colors because he believed those voters were prone to cast ballots against the political operative’s favored candidate?
Despite the fact that no objective baseline exists, I do agree that the question of which jurisdictions must comply with the process merits serious consideration. In light of this, in my “Future of the Voting Rights” chapter I attempt to identify symptoms of racial dysfunction in a political process and measure which jurisdictions present such symptoms to a greater extent than others. I use factors like the number of Section 5 objections, Section 2 claims, deployment of federal observers, racial disparities in voter turnout, amount of political party competition for voters of color, racial disparities between voters and elected officials, and size of minority group and low-English proficiency populations.
The data show that several fully or partially covered states remain at the “bottom of the curve,” including states with House members who voted against renewal like Alabama, Arizona, California, Georgia, Louisiana, South Carolina, and Texas.
–Spencer Overton