The Future of the Voting Rights Act: Lessons from the History of School (Re-)Segregation

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INTRODUCTION

On September 21, 2011, U.S. District Judge John Bates upheld the constitutionality of section 5 of the Voting Rights Act (VRA) in Shelby County v. Holder, issuing a 151-page opinion that exhaustively analyzed and rejected challenges to the VRA's validity. (1) Oral arguments in the D.C. Circuit are scheduled for January 2012. (2) Advocates of voting rights have applauded Judge Bates's decision as a victory for section 5, (3) which was renewed in 2006 but has been teetering on the brink of being struck down since the Supreme Court's June 2009 decision in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO). (4) But this applause may be premature.

As this Comment will argue, the survival of the VRA in its current form may turn out to be a defeat for the cause of voting rights. I arrive at this conclusion based on the lessons of school desegregation. After the Court allowed schools to "bail out" of mandatory desegregation by achieving "unitary status," many schools reverted to degrees of segregation that rivaled the pre-Brown v. Board of Education era. (5) If the Court allows a similar bailout option in the voting rights context, parallel regressions in voter protections could result.

I am not arguing that section 5 is unconstitutional. Nor am I taking a position on whether section 5, if it were not weakened by bailout, might be worth preserving. However, for all the good that section 5 might do in the jurisdictions where it still applies, its reach is underinclusive: states that are not (and never were) subject to section 5 are sites of growing voting rights concerns. (6) Moreover, if the Court continues to sidestep the question of section 5's validity using the canon of constitutional avoidance, we will be left with a law that is a shadow of its former self. The cause of voting rights might be better served if the Court addressed the constitutional issue head-on, even if that means possibly finding the current section 5 unconstitutional. Such an outcome could motivate Congress to present a more narrowly tailored and carefully crafted provision that would provide the needed protection and would stand up to constitutional scrutiny. (7)

I. SAVING SECTION 5?

Congress passed the Voting Rights Act in 1965 to protect the promises of the Fifteenth Amendment against the reality of widespread disenfranchisement. (8) Section 5, widely considered the key piece of the VRA, requires that certain localities "preclear" changes in voting through an administrative decision of the Department of Justice (DOJ) or a declaratory judgment from the federal district court for the District of Columbia. (9) These preclearances must establish that the change will not "deny" or "abridg[e] the right to vote on account of race or color." (10) Portions of the Act were scheduled to expire in 2007, but in 2006, following weeks of legislative hearings, Congress determined that the VRA's protective measures were still essential to fair voting and reauthorized section 5. (11)

In spite of Congress's extensive hearings, in NAMUDNO, the Supreme Court suggested that several of its members had "serious misgivings" about the constitutionality of section 5, (12) particularly in light of the "congruence and proportionality" test established in the 1997 case City of Boerne v. Flores. (13) The Court ultimately avoided the constitutional question by providing the utility district relief under the VRA's section 4 bailout provision, thus releasing NAMUDNO from the section 5 requirement. (14) But this respite for section 5 could be short-lived--Justice Thomas made it clear that he, for one, believes the law is unconstitutional. (15) And in an earlier section 5 case where Justice Thomas raised similar "constitutional concerns," Justice Kennedy indicated that those concerns could merit consideration. (16)

An abundance of commentary about how to save section 5, why to save section 5, and whether we can save section 5 followed the decision. …