Ansolabehere and Persily: Deciding Not to Decide…For Now

Steve Ansolabehere and Nate Persily have written this guest post:

    The Supreme Court dodged a bullet yesterday by deciding not to decide the constitutionality of section 5 of the newly reauthorized Voting Rights Act. The decision, which makes small jurisdictions eligible for bailout from the Act, will have little practical impact. It leaves for another day the vexing constitutional question whether the Act’s selective targeting of jurisdictions for coverage now exceeds Congress’s power to protect civil rights. The Court will eventually confront that question, however, and there are things Congress and the Administration can do now to bolster the constitutionality of the Act.
    The reason yesterday’s decision will have little practical impact is that of the 12,000 jurisdictions covered by the Act before this decision only 17 municipalities (all in Virginia) have bailed out since 1982. The expansion of the bailout option to smaller municipalities is unlikely to lead to a flood of requests, given that very few eligible jurisdictions who always could have bailed out have decided to take that step. The rarity of bailout is somewhat of a mystery. Perhaps the criteria for bailout are too difficult or politicians are loathe to take as their cause celebre the escaping from a civil rights law. Or perhaps, as many of the covered jurisdictions themselves have indicated, they prefer to be covered because it gives them a DOJ stamp of approval for their voting laws that they can wave in the face of those who otherwise might sue them. Whatever the reasons for the rarity of bailout, one must suspect that those reasons will still be present for the jurisdictions newly eligible for escaping coverage under the Act.
    Given the concerns over the constitutionality of the Act voiced at oral argument by what seemed like a majority of the Court, the Administration and Congress should take actions now to shore up the Act’s constitutionality. First, the Department of Justice should communicate to certain covered jurisdictions their intention not to oppose bailout and in fact, should encourage qualified jurisdictions to seek bailout. Several hundred covered jurisdictions have virtually zero minority population, and therefore pose no threat to minority voting rights. They, along with others that have a spotless record regarding discrimination in voting, should be urged to bail out.
    Congress too can help shore up the Act’s constitutionality. It could alter the bailout statute itself, as some have proposed, to make bailout automatic or more prevalent. However, at a minimum it should establish a national reporting system that will allow us to evaluate the quality of democracy among the fifty states. Such a system should include the reporting of all results in federal elections down to the precinct level, so that we can match turnout, registration and other measures of election system performance with census demographic data. It should also expand the election supplement to the 2010 Census Current Population Survey and the American Community Survey by including various election administration questions to assess which voters in which locations are more likely to face longer lines, voter ID barriers, and other aspects of election maladministration.
    There is, of course, a chance that the data will reveal a new coverage formula is necessary or that levels of discrimination against minorities are more consistent nationwide. If so, then Congress should amend the Voting Rights Act before the Court tells it to do so.

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