Dan Tokaji has posted this draft on SSRN (forthcoming, Harvard Law & Policy Review). Here is the abstract:
The immediate reaction to the Supreme Court’s decision in Shelby County v. Holder was predictably fast, furious, and fissured. Some lauded the decision as a long overdue recognition that things really have changed in the South since the bad old days of mass disenfranchisement, so effectively demolished by the Voting Rights Act of 1965 (VRA). Others lamented the Court’s unceremonious disposal of the civil rights movement’s “crown jewel.” While there is some truth in both perspectives, this article focuses on what both sides have largely missed.
The article argues that Shelby County provides an opportunity for Congress to take constructive action to protect the vote for all eligible citizens. It proposes a Grand Election Bargain: federal legislation that would expand the opportunities for voter registration (a priority for Democrats) while requiring voter identification (a priority for Republicans) in federal elections. The approach suggested here is a necessary complement to the race-based remedies available under current law, one that would expand the right to vote more generally. It is a proposal for a Voting Rights Act that will address the problems of the current century rather than those of the last century.
Despite the improvements over the years, significant gaps in registration and participation remain for some demographic groups – especially Latinos, Asian Americans, people of limited education and income, people with disabilities, and young people. Liberalized voter registration rules, particularly same-day registration can help include some of those most likely to be left out. The federal registration and identification rules proposed here would preempt contrary state laws in federal elections. This lies squarely within Congress’ power under the Elections Clause, as clarified by the Court’s decision in Arizona v. Inter Tribal Council of Arizona.
Part I of the article briefly describes what Shelby County did, setting the stage for discussion of the Voting Rights Act’s actual and perceived effects on election administration. Part II assesses what the preclearance regime was doing before Shelby County, showing that Section 5 was mostly used to stop vote dilution, but did relatively little to stop the new vote denial. Part III examines the evidence regarding who votes and who doesn’t, as well as the causes for low registration and participation among some groups. Part IV proposes a Grand Election Bargain that would expand voter registration and voter identification in federal elections, providing consistent national rules that would trump contrary state and local laws, while moving us closer to the ideal of including all eligible voters in the electorate.
Can’t wait to read this!