The Promise and Pitfalls of the New Voting Rights Act

By Persily, Nathaniel | The Yale Law Journal, November 2007 | Go to article overview
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The Promise and Pitfalls of the New Voting Rights Act


Persily, Nathaniel, The Yale Law Journal


ARTICLE CONTENTS

INTRODUCTION

 I.  THE PATH OF LEGISLATION

     A. The VRARA in the House: Channeling Dissent into Failed
        Amendments
     B. The VRARA in the Senate: Channeling Dissent into Postenactment
        Legislative History

II.  THE EVIDENTIARY RECORD

     A. Rates of Minority Voter Turnout, Registration, and Officeholding
     B. Evidence Concerning the Preclearance Process: Rates of
        Submissions, Denials, and Requests for More Information
     C. Voting Rights Violations in Covered Jurisdictions

III. WHY THE BASIC STRUCTURE OF THE LAW REMAINS INTACT

     A. Retaining the Same Coverage Formula
     B. Bailout
     C. The Section 5 Enforcement Regime

 IV. THE NEW STANDARD FOR RETROGRESSION

     A. Preferred Candidates of Choice
        1. Minority Candidate
        2. Democratic Candidate
        3. The DOJ's Most Recent Approach and the One Likely
           To Be Followed
        4. Candidates Uniquely Preferred by Minorities
        5. The Role of Incumbency in Determining Candidate of Choice
     B. The Ability To Elect
        1. No More Tradeoffs for Influence Districts
        2. "Naturally Occurring" Majority-Minority Districts?
        3. The Importance of Racial Bloc Voting to the Ability To Elect
        4. "Ability To Elect" as a Continuous or Dichotomous Variable?
     C. Diminishing
        1. Ability To Elect per District or Across Districts?
        2. Diminution Through Overconcentration and
           Underconcentration of Minority Voters
        3. The Art and Science of Measuring Diminution in the
           Ability To Elect

CONCLUSION

INTRODUCTION

In the series of cases that have made up the Supreme Court's recent jurisprudence concerning congressional power to protect civil rights, the Voting Rights Act (VRA) has been the standard against which all other statutes are judged. (1) Unlike other civil rights statutes that may have swept too broadly in their geographic reach and permanent duration, section 5 of the VRA (2) targeted a limited number of geographically defined wrongdoers (3) and did so for a limited time. (4) Unlike those constitutionally precarious statutes that may have elevated classes from the lower tiers of Fourteenth Amendment scrutiny, (5) the VRA dealt specifically with race (a classification that is "immediately suspect" (6)) and with voting ("a fundamental political right, because [it is] preservative of all rights" (7)). And unlike those statutes with a tenuous relationship to unconstitutional state action, (8) the VRA was built on a record of persistent constitutional violations by state actors who were unapologetic in their defiance of federal court orders. (9)

Because Congress acted at the apex of its power to enforce the guarantees of the post-Civil War Amendments in passing the VRA, the Court could stomach the tough medicine that is section 5 of the Act. That measure stands alone in American history in its alteration of authority between the federal government and the states and the unique procedures it requires of states and localities that want to change their laws. No other statute applies only to a subset of the country and requires covered states and localities to get permission from the federal government before implementing a certain type of law. (10) Such a remedy was necessary because case-by-case adjudication of voting rights lawsuits proved incapable of reining in crafty Dixiecrat legislatures determined to deprive African Americans of their right to vote, regardless of what a federal court might order. (11)

Congress intended the expiration of section 5 to force the nation to take stock of its progress, or lack thereof, in achieving equal voting rights, as well as to adapt the law to new challenges and changing political realities. Those who originally crafted the law, however, could not have foreseen how section 5 would become, in both substance and symbolism, a cornerstone of the architecture of federal election law and civil rights guarantees.

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