Reconstructing Section 5: A Post-Katrina Proposal for Voting Rights Act Reform

Article excerpt



     A. Two Generations of Section 5
     B. The Beer Retrogression Standard

     A. The Emergency Voting Plan
     B. The Preclearance Paradox


     A. Dynamic Benchmarking
        1. Assessing the Existing Voting Regime
        2. Selecting a Replacement Benchmark
        3. Exiting Dynamic Benchmarking: One Front Door, One Back Door
     B. Support for Dynamic Benchmarking
        1. Legislative History
        2. Previous Departures from Static Benchmarking
     C. Applying Dynamic Benchmarking to Post-Katrina Louisiana



In the aftermath of Hurricane Katrina, Louisiana and the Gulf Coast began the long march to recovery. Hurricane Katrina was the most destructive natural disaster in American history, (1) resulting in approximately 1500 deaths in Louisiana alone (2) and sparking a human displacement unrivaled since the Dust Bowl migration of the 1930s. (3) Although the Category 3 storm inflicted significant damage along the entire Gulf Coast, its wrath was felt most acutely in the city of New Orleans, where massive flooding overwhelmed poorly constructed levees and drowned vast stretches of the city. (4)

Katrina's primary victims were New Orleans's most vulnerable citizens--those who could not afford to evacuate or who had homes in low-lying areas hit hardest by the flooding? Renters (6) and African-American residents (7) were particularly harmed; African-Americans constituted the majority of the displaced and, in the post-disaster period, tended to live farther away from New Orleans than white evacuees. (8) Although many sought refuge in nearby cities like Baton Rouge, Katrina's "diaspora" (9) scattered most residents to cities outside of Louisiana, such as Houston and Atlanta. (10)

Against this backdrop of devastation, Louisiana's political leaders were charged with the unprecedented task of conducting elections with a displaced electorate. For generations, the state's political system existed in an uneasy partisan and racial balance, with black voters often determining the outcomes of state and federal elections. (11) New Orleans, with a population that was 67% African-American, (12) was the center of minority political power in Louisiana. But Katrina struck a deep blow to the city's minority electorate: between 27% and 48% of Orleans Parish voters were displaced, and of these voters, 75% were black. (13) With New Orleans's first post-Katrina municipal elections scheduled to take place in February 2006, and with rising speculation of an impending racial and political realignment, (14) the Louisiana State Legislature began the highly contested process of developing new voting rules for a devastated democracy.

Because of its deep history of racially discriminatory politics, (15) Louisiana must--in developing voting rules--comply with section 5, the most celebrated and controversial provision of the Voting Rights Act (VRA) of 1965. (16) Section 5 requires Louisiana and other "covered jurisdictions" (17) to preclear all changes in their voting laws with either the Department of Justice (DOJ) or a special three-judge district court in Washington, D.C., before the changes take effect. (18) The provision was originally crafted in response to the persistent and creative tactics employed by covered jurisdictions to avoid federal civil rights mandates. (19) By demanding preclearance for all voting changes--from the seemingly insignificant and uncontested, to the most critical and controversial--section 5 enlists the federal government as a constant chaperone in matters of state election administration.

The test used to enforce section 5, which I will call the "static benchmarking" test, (20) was conceived by the Supreme Court in Beer v. United States to ward off voting changes that would result in a "retrogression" in minority voters' "effective exercise of the electoral franchise. …