Cain and Tokaji: Promoting Equal Participation: A Voting Rights Act for the 21st Century

Here is a guest post by Bruce Cain and Dan Tokaji:

    In avoiding the question whether a key section of the Voting Rights Act violates the Constitution, the U.S. Supreme Court has provided a welcome respite for civil rights advocates worried that a cornerstone of racial justice would be decimated. The fact remains, however, that there are some serious cracks in the foundation of voting rights law that need to be addressed. Even though the VRA has been left standing, at least for the moment, the current Congress should get to work filling these cracks promptly. This might be accomplished by creating new legislation that broadly targets barriers to participation among racial minorities, economically disadvantaged, and other vulnerable groups.
    When Congress reauthorized the Voting Rights Act in 2006, it failed to address some of the most glaring voting rights problems that exist today. Foremost among them are practices that may impede participation by people of color and lower socioeconomic status. In order to understanding the shortcomings of current voting rights law, it is necessary to step back in history. In the earliest years of the VRA, the central problems were discriminatory barriers to participation like literacy tests and poll taxes. These practices are sometimes referred to as “vote denial” because they prevented eligible citizens from voting or having their votes counted. It quickly became apparent that eliminating these barriers, while necessary, was not sufficient to ensure political equality for racial minorities. The emphasis thus switched to “vote dilution” — that is, to practices like annexations, at-large elections, and unfair legislative districts that weakened minorities’ representation, even where they were allowed to vote.
    While vote dilution remains problematic, the pendulum has swung back to vote denial in the years since the 2000 election, which focused attention on voting equipment, inaccurate registration lists, and other barriers to equal participation. Whether or not motivated by direct racial bias, such practices can keep eligible people from voting and having their votes counting. They can also distort the composition of the electorate, by disproportionately excluding racial and language minorities, people with disabilities, students, elderly voters, poor people, and those of limited educational attainment.
    Collectively, these barriers to full participation can be thought of as the new vote denial. Just as poll taxes and literacy tests prevented poor people and racial minorities from voting, some election administration procedures may have discriminatory effects as well. That includes not only onerous identification requirements and overly aggressive purges of voting lists, but also reforms ostensibly undertaken for improving security or lessening inconvenience that may have unintended effects. An example is the move to all-mail elections, which some scholars believe will skew the electorate, making it older, richer, and whiter than it already is.
    As effective as Section 5 has been when it comes to minority vote dilution, it has been remarkably ineffective when it comes to practices that impede people from voting or prevent their votes from being counted. The U.S. Department of Justice almost never objects to new election administration rules or procedural changes that may impede participation. Although the Justice Department is to be commended for its recent objection to Georgia’s “voter verification” program, due to its discriminatory impact on African American, Asian American, and Latino voters, this case is the exception that proves the rule. In previous years, it has been extremely rare for new barriers to trigger an objection or a request for more information. This is understandable, since it has lacked either the tools or the will to monitor these practices effectively. Moreover, the coverage formula isn’t targeted to places where there’s most reason to worry about unfair barriers to participation in the 21st Century.
    The Court’s decision gives Congress a second chance to do something about the new vote denial. We recommend that it adopt a new scheme, applicable exclusively to rules and practices that may affect participation, while leaving others to consider what should be done about issues of vote dilution. When it comes to vote denial, a well-designed scheme should appropriately cover jurisdictions that have demonstrated a systematic pattern of low participation, flagging procedural changes that might worsen that problem and incentivizing changes that would improve the situation.
    The task of monitoring the many administrative aspects involved in running an election can be time consuming and overwhelming, especially for disadvantaged groups. Coverage serves the purpose of drawing attention to areas that need special attention. To be effective, a federal administrative process should reduce the costs of monitoring for potentially affected voters. Ideally, a proposed change should trigger higher scrutiny, community input and ultimately final review and arbitration. And since the effects of some proposed new rules might not be known with any reasonable degree of reliability, the review process may need to generate new information and extend over time. Instead of just yes or no, perhaps the answer should sometimes be try it, provide some additional information, and revisit the recommendation later.
    Under our proposed scheme, state and localities would be covered if their participation fell below a certain prescribed level for a set period of time, say three consecutive federal election cycles. Those jurisdictions would be subject to certain special requirements, designed to prevent law and practices that may disproportionately exclude minorities and people of lower socioeconomic status. There are three specific questions that this new regime would have to address: (1) what state and local jurisdictions are covered, (2) what those covered jurisdictions are required to do, and (3) what federal agency would administer and monitor compliance. We discuss these questions in turn.
    First, how extensive would this coverage be? A trigger of falling below the national average in eligible voter turnout for three consecutive Presidential elections would cover 18 states in their entirety, including many southern states with large black populations (e.g. Mississippi, Alabama, Georgia and South Carolina) but also southern states with smaller black populations (e.g. West Virginia, Kentucky), western states with large Latino populations (Texas, New Mexico and Arizona), and jurisdictions outside the south with high minority populations (Hawaii and the District of Columbia). In short, it broadens the coverage to all sorts of low participation groups.
    Second, what would covered jurisdictions be required to do? We recommend that, before implementing a new voting practice, covered states and localities be required to issue an “electoral impact statement,” analogous to environmental impact statements. Covered areas would have to report voting statistics in greater detail such as number of failed registration attempts, how many voters were removed from the rolls and why, the number of provisional and absentee ballots counted, the reasons for rejecting those ballots. The idea is that the jurisdiction would have to provide a fuller picture of ballot and registration data in order to help assess why participation was low. In preparing the electoral impact statement, state and local authorities would be required to consult with representatives from the affected communities, including minority groups. For example, if authorities decided to close down an early voting center principally serving the African American community in a given county, they would have to provide a basis for their decision. To the extent that the recommendations of such representatives were rejected, state and local authorities would have to explain why. The electoral impact statement should assess not only the effect on racial and language minorities, but also on people of lower economic status — an often overlooked group, even within the civil rights community.
    Third and finally, what agency should be responsible for monitoring compliance with these new requirements? This is an especially thorny and difficult question. Under the current scheme, the Department of Justice decides whether to preclear electoral changes in the vast majority of changes, with covered jurisdictions having recourse to federal courts if preclearance is denied. Through most of its history, this process has prompted allegations of partisan conduct on the part of Justice Department officials. In the last administration, the Department’s decision to preclear Georgia’s restrictive voter identification law and Texas’ redistricting plan –both over the objections of career staff — proved especially controversial. We recommend the creation of a new agency to replace the Department of Justice, in reviewing electoral impact statements and preclearing changes, with the opportunity for judicial review if members of the community disagree with a decision.
    While there is much that would require elaboration, our key point is that Congress must consider a new administrative process that will address barriers to participation faced by both minorities and people of lower socioeconomic status. As useful as Section 5 has been in curbing vote dilution, it has been ineffective in stopping the new vote denial. Now is the time for Congress to develop a system that will address 21st Century barriers to full and equal participation.

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