July 15, 2005

Will Reauthorization of the Voting Rights Act Come Too Quickly and Easily, Rendering It Unconstitutional?

The preclearance provision (section 5) of the Voting Rights Act, along with some other provisions of the Act, come up for renewal in 2007, and it was originally expected that Congressional debate over renewal would come in 2006 or early 2007.

Things now appear to be moving much faster. Back in February, it appeared that President Bush did not even know that the reauthorization issue was coming, and his spokesperson was non-committal about reauthorization. Now, the President not only expressed support for reauthorization; he wants to look for ways to strengthen the act. Perhaps even more importantly, according to this press release, "House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-Wis.) today is announcing he will introduce legislation to extend the Voting Rights Act for 25 years and is calling for a bipartisan approach to civil rights issues. " In his prepared remarks, Sensenbrenner said: "The Voting Rights Act must continue to exist and exist in its current form." This Washington Post report notes that "House Speaker J. Dennis Hastert (R-Ill.) included reauthorization of the Voting Rights Act among his immediate priorities when he outlined his upcoming agenda on the House floor before the Fourth of July district work period." This new urgency may explain today's Wall Street Journal oped by Thernstrom and Blum opposing reauthorization.

So it may be that we are on track for a quick renewal of section 5 of the Voting Rights Act to apply to the same jurisdictions as in 1982, and to apply for another 25 year period. That might sound like a great potential victory for the civil rights community, which so far has been applauding these actions (and the Post suggests that this is part of Republican outreach to minority communities).

But this might not be much of a victory. There are strong reasons to believe that a reauthorization tied to the use of a test or device for voting in 1965 and 1982 and that extends federal intrusion into state and local voting rules for another generation would be unconstitutional. The basic point (spelled out in much greater detail here) is that in recent years the Supreme Court has limited the scope of Congress's power to burden the states with onerous requirements. If Congress passes a broad-based law subjecting some states to preclearance for 25 more years without showing a strong evidentiary record that states are engaging in unconstitutional racial discrimination in voting could well be struck down by the Supreme Court, especially a Court lacking Justice O'Connor.

What should proponents of reauthorization do? (1) Slow down. (2) Craft a careful evidenitary record of intentional discrimination by states. (3) Explore potential bases for the exercise of congressional power that would withstand Supreme Court scrutiny. (4) Consider whether a narrower and more carefully crafted law might be worthwhile in order to save the law from judicial nullification.

Posted by Rick Hasen at July 15, 2005 02:15 PM