June 24, 2009

Pildes: Going Forward

Rick Pildes has written this guest post:

    Rather than focusing on the Court's opinion, I want to look forward to the future of voting rights. The Supreme Court's decision gives Congress some breathing room, but the decision also puts Congress back on the hook.

    If Congress is willing to take charge of this issue, it should start by recognizing that experience has given us two distinct models of national voting-rights legislation. For the future of voting rights, the most important decision will be which model Congress and the President embrace. If Congress can think outside the box of the law that the Court struck down, the Court's decision will spur the most effective voting laws for the next generation.

    The first model is represented by Section 5 of the VRA, the law the Court just held unconstitutional. It reflects a "targeted," anti-discrimination approach to voting-rights protection. Section 5 is targeted in two senses. First, it defines in advance-- for the next 25 years-- which parts of the country have distinct voting problems that require unique federal oversight. Since 1975, the same nine states (mostly Southern) have been under this regime. Second, Section 5 singled out race-based denials of voting rights as the only kind of disfranchisement that justified aggressive federal protection. The Department of Justice, for example, recently used this law to block Georgia from requiring proof of citizenship to vote, given the error-riddled data bases that would have been used. But the Supreme Court was skeptical about whether the Act would remain constitutional because Congress had difficulty justifying why the same states that had been selected for unique federal oversight in 1975 remain the appropriate states to continue to single out until 2031.

    The second model of voting-rights legislation is a "right to vote" model. It entails universal and general national laws that directly protect the right to vote of all voters nationwide. This model has emerged over the last 20 years. It's reflected in laws like the Help America Vote Act of 2002 and the National Voter Registration Act of 1993. National laws to directly protect the right to vote in all elections -- state and national -- became possible only after the modern Supreme Court established that the right to vote is a fundamental constitutional right. Laws like this do not require justifying why some areas have been singled out; nor do they protect only against race-based denials of the vote. If Ohio enacts citizenship requirements for voting that would be illegal in Georgia, they should be just as illegal in Ohio. If state laws unjustifiably disfranchise elderly voters, or poor voters, or any voters at all, such laws should be illegal even if they are not racially discriminatory.

    In response to the Court's decision, Congress might find it tempting to try to "save Section 5" by tinkering with the formula that determines which areas should be targeted. But why not start by recognizing this targeted model grew from the political and constitutional constraints of earlier eras? For most of American history, including when Section 5 was enacted in 1965, laws affecting voting were left to the States. Congress could legislate to enforce a specific constitutional command, such as the Fourteenth and Fifteenth Amendments bans on racial discrimination. That's why we have so few national statutes that protect the right to vote and why the original ones, such as the VRA, don't guarantee the right to vote in general, but only protect against racially discriminatory barriers to voting.

    Besides reflecting these historical constraints, "targeted" laws like Section 5 are inherently limited today. They require Congress to identify 25 years in advance where voting problems are likely to arise systematically. As we emerged from the era of black disfranchisement in the South, it was not difficult to identify those areas. But today, close elections are most often the best way to predict where manipulative voting practices will arise. Yet the location of close elections inevitably varies. In Presidential elections, the problems in 2000 emerged in Florida; in 2004, in Ohio; in 2012, they could be in Minnesota.

    In addition, to the extent a reformed Section 5 would remain targeted on race only, it would require increasingly complex efforts to sort out whether a law impinging on voting rights is racial in character or not. The Supreme Court that just struck down Section 5, moreover, is likely to permit Congress to ban only those voting laws that can be tied to a racially-discriminatory purpose. In recent years, Section 5 has also had diminishing practical effect. Given all this, an effort to "save Section 5," even if successful, would likely be of more symbolic than practical effect.

    National right-to-vote laws bypass these problems and are likely to have more widespread practical effect. Such laws would secure the vote against all unreasonable and unjustified limitations. They would be the most effective way to protect voting rights now, including those of minority voters. In these laws, Congress could retain a form of administrative preclearance review; such review could be required nationwide for particularly significant voting laws, such as those affecting access to the ballot box.

    The current version of Section 5 is in constitutional jeopardy because a risk-averse Congress simply preserved the status quo when it reauthorized the Act in 2006. In light of the Court's decision, a risk-averse Congress might do nothing or tweak Section 5 in minor ways. But to protect voting rights for the next generation, the most effective way for Congress and the President to respond to the Court's decision is with uniform, tough new measures that protect the right to vote nationwide.

Posted by Rick Hasen at June 24, 2009 10:11 AM