Heather Gerken asks whether academics privately believe that the civil rights community ought to reject the proposed amendment to the Voting Rights Act. I don’t know what most academics believe privately, but unless we hear something more from the civil rights community other than political expediency, this academic is willing to say publicly that the civil rights community ought to say “no deal.”
Heather is right that academics are rarely in a position to understand what legislative compromises are possible. But as she intimates, we can evaluate results; and looking at the results, it is hard to see what the civil rights community is getting in this deal.
Unlike most of my fellow election law scholars, I am less worried about the constitutionality of the proposed amended act. I’ll leave that discussion for a later post, but I think that there are relatively strong arguments that can be offered in favor of constitutionality. What concerns me more is the inability to see the payoff in this deal for the civil rights community.
Leaving aside the extension of the language assistance requirements–a real contribution that should not be too controversial–the proposed amendment does essentially three things. First, it extends the preclearance requirement for covered jurisdictions for the next 25 years. Second, it reverses Reno v. Bossier Parrish II. Third, it overturns parts of Georgia v. Ashcroft. None of these proposals holds much promise for substantially improving the positions of voters of color in the political process.
Take first the extension of Section 5. The primary objection to preserving Section 5 in its current form is that the current preclearance mechanism is incapable of responding to the problems that voters of color face in the twenty-first century. Instead of taking a forward-looking approach and thinking about the voting rights challenges for the new millennium, Congress so far appears to be stuck in the last millennium. In the last millennium, we were deeply concerned with precluding the use of intentionally discriminatory electoral devices from state actors. For example we worried that elected officials would use at-large districting schemes to disenfranchise voters of color; would move polling places just so that voters of color won’t be able to vote; pack voters of color into districts simply to minimize their voting power, etc. If those are still the types of concerns most relevant to today’s voters of color, we should take the deal and do so happily.
But I suspect that these are not the concerns that we worry about for the twenty-first century. Our twenty-first century concerns involve electoral rules and structures that have secondary effects on the electoral prospects of voters of color. (This is not to say that there won’t be instances of intentional discrimination, particularly at the local level. But they won’t be the modal concerns.) Secondary effects concerns include the design and uniformity of electoral ballots; registration requirements; voter identification requirements; ex-felon disenfranchisement; election administration matters and the like. These issues are not being picked up by Section 5’s preclearance mechanism–nor are they capable of being picked up by the current regulatory structure.
In fact, not much is being picked up by Section 5’s preclearance mechanism, and that’s the fatal problem with a reactive extension of Section 5. Consider the State of South Carolina. South Carolina–a bad actor if there ever was one–was one of the states covered by the 1965 version of the Act. Between 1970 and 1979, the DOJ objected to almost all of the submissions submitted for preclearance from South Carolina. Fast-forward to the new millennium. From 2000-2004 the DOJ objected to nine submissions from South Carolina out of roughly 4800 submissions. That’s .0018 of all submissions from South Carolina from 2000-2004. This means that the DOJ is preclearing 99.9% of all submission, and South Carolina is not by any means an outlier.
Some have argued that this high preclearance rate is a consequence of the Court’s Bossier II opinion (and thus desire to reverse Bossier II). Bossier II holds that the DOJ must preclear under Section 5 an electoral change that is purposefully discriminatory under Section 2 as long as the electoral change does not make voters of color worse off. However, Bossier II cannot be held responsible for near automatic preclearance of submissions under Section 5. Two reasons are most relevant here.
First, when ones looks at the data it becomes very clear that the DOJ interposed fewer objections starting right after 1995; Bossier II did not come down until 2000. Second, many veterans of the DOJ’s Civil Rights Division maintain that there were very few purpose objections that were interposed prior to Bossier II. According to them, Bossier II did not significantly alter prior practice. Make no mistake, Bossier II is a bad opinion. But the problem with Bossier II is the Court’s ridiculous contention that Congress intended that the DOJ preclear changes that are clearly purposefully discriminatory. So, the opinion is obnoxious as a symbolic matter and should be reversed. (As a good friend said to me, “The Court deserves to be spanked.”) But one should not expect a successful reversal of Bossier II to have much practical effect.
So, that leaves us with the third prong of the holy trinity, reversing Georgia v. Aschcroft. The difficulty with reversing Georgia v. Ashcroft is that the problem is not the opinion but the facts on the ground. The proposed amendment latches on to the phrase “elect preferred candidate of choice.” That is, any voting qualification that has the purpose or effect of diminishing the ability of voters of color to “elected their preferred candidates of choice” violates Section 5. But the problem is precisely how one determines who the candidate of choice is.
Is the candidate of choice the candidate emerges after the creation of a majority-minority district where one can be created? Suppose that one cannot be created. Is the state obligated to create coalition districts and would the candidate of choice be the product of that coalition? What happens when white voters coalesce with enough voters of color to produce a Denise Majette over the preference of the majority of Black voters who wanted say Cynthia McKinney type? The problem is that the “candidate of choice” is an endogenous contextual variable that can best be evaluated by, well, examining the totality of the circumstances on the ground. The proposed amendment does not provide any guidance on that very difficult but key question. (Incidentally, this is precisely the reason that the Court in Georgia v. Ashcroft used John Lewis as a proxy for determining the best interest of voters of color.) Indeed, there is no reason to believe that in interpreting the language that purportedly reversed Georgia v. Ashcroft, the Court might end up in the same place with another Georgia v. Ashcroft.
Most of us want better protections for voting rights, especially for voters of color. But this proposed amendment to the VRA might not be it. If this is the deal that the civil rights community is getting, I say “no deal.”
–Guy Charles