Gene Mazo has posted this abstract (no draft) on SSRN (forthcoming ELJ):
On the fiftieth anniversary of the Voting Rights Act of 1965, the scholarly community has been fretting over the statute’s possible demise. Two years after Shelby County v. Holder, many voting rights scholars are still up in arms about the Supreme Court’s 2013 decision that rendered Section 5 of the VRA a dead letter. Section 5 had previously required covered jurisdictions to obtain federal preclearance before implementing any changes to their voting practices or procedures. But in Shelby County, the Court held that the coverage formula of Section 4, which determined which states and local governments were subject to preclearance based on their histories of discrimination in voting, was unconstitutional. That rendered Section 5 obsolete.
In the wake of Shelby County, voting rights scholars have scrambled to understand the Court’s opinion and to craft a response. Some scholars saw Shelby County as a deeply destabilizing decision that implicated longstanding federalism and separations of powers doctrines, with negative effects on matters of race and voting. Others attacked the reasoning on which Shelby County was based, especially Chief Justice John Roberts’s argument that there is a “fundamental tradition of equal sovereignty” among the states which preclearance violated, and his assertion that the coverage formula was not congruent with proven voting rights violations.
Today, most scholars acknowledge that the prospects for adopting a renewed Voting Rights Act are slim, not least because the realignment of the Republican majority in Congress is less receptive to the VRA than the Republicans were a decade ago. Thus, the attention of election law scholars and voting rights advocates has shifted — to laying the groundwork for a possible future Congress to update the coverage formula of Section 4; to focusing on Section 2 as an alternative vehicle under which voting rights litigation can be brought; and to devising other methods to encourage greater participation in our elections by racial and ethnic minorities.
As the scholarly community has become more devoted to addressing the barriers to voting and to salvaging what remains of the Voting Rights Act, its efforts have been bolstered by the creation of the new Section on Election Law within the Association of American Law Schools, the umbrella organization that governs legal academics in the United States. This is a reply to three papers that were presented at the first-ever meeting of this new Section, which took place in Washington, D.C., on January 4, 2015. It tries to take stock of where we stand regarding the future of the Voting Rights Act and also provides a history of the creation of the Section on Election Law itself.