In a thoughtful and provocative post on the VRA renewal debate, Heather Gerken asks a provocative question: “If the deal is going to go through regardless of what a few academics think about its merits, why allow the perfect to be the enemy of the good?”
I think there are a few reasons to engage in this debate.
1. Perhaps Heather is closer to the politics than I am, but I am not convinced that the chances of getting at least some improvement on the current bill are nil. It could be, for example, that when Sen. Judiciary Committee chairman Specter hears that many leading academic voices (though certainly not all) have serious questions about both the constitutionality of a renewed section 5 and about the wisdom of certain details of “the deal,” he could push for some changes to the bill.
2. The idea that the deal should just go through as is and the country should “roll the dice” on preclearance is riskier than those who support this strategy have let on. The risk is portrayed as merely that section 5 in its current form is struck down, and then Congress goes back and writes a law to meet the Supreme Court’s “congruence and proportionality” standard. But there’s a bigger risk. The precedent that such a Supreme Court holding could set could endanger the constitutionality of section 2 of the Voting Rights Act as well (a much more important provision of the Act at this point), as well as other civil rights laws. I am quite concerned with what the Roberts Court could do if Congress gives them a beautiful pitch right over home plate. At the very least, people who support the deal should acknowledge the serious risks.
3. As academics—particularly those of us with tenure–we have an opportunity to offer frank analysis that others cannot do. Case in point: I have heard from many people privately in the voting rights community who agree with my analysis of the potential constitutional problems with “the deal” but who do not want to publicly be associated with that position. If we don’t speak up, no one will.
4. The sunset provision of section 5 for academics is a great opportunity to take stock and analyze the law, an opportunity that is being lost as “the deal” goes through. Indeed, it would be a good thing if many major pieces of legislation had sunset provisions, so that these debates can go forward. Ideally, this debate should occur in Congress; but if Congress won’t do it, we should.
Next week I want to talk in more detail about ways to fix the bill that aren’t dealbreakers. In particular, I want to talk about how enhanced proactive bailout could potentially offer a way around the constitutional problems I have raised. I also want to write more about the issue of allowing appeals both from bailout decisions and from regular preclearance decisions.