Academic journal article Iowa Law Review

The Voting Rights Act in Winter: The Death of a Superstatute

Academic journal article Iowa Law Review

The Voting Rights Act in Winter: The Death of a Superstatute

Article excerpt

I. INTRODUCTION

The Voting Rights Act ("VRA") is dying. As we begin to chart a new course, we must understand why. The unraveling of the VRA is a remarkable moment in the history of voting rights law in the United States. Not only is the Act widely regarded as the most successful civil rights statute ever enacted by Congress, but it is also unlike ordinary legislation. From the moment the Supreme Court first addressed the constitutionality of the Act in South Carolina v. Katzenbach,1 the Court has generally treated the VRA like a special statute, a superstatute.2 A term of art, the word "superstatute" describes a category of landmark legislation that addresses a significant public policy problem that if left unresolved would call into question a fundamental constitutional commitment.3 The Supreme Court has, until recently, by and large, accepted the voting rights agenda represented by the VRA and viewed Congress and the executive branch as co-equal partners that were effectuating constitutional commands.

One cannot read the early voting rights cases and view the Court as a neutral and detached arbiter on voting rights policy. As befits a superstatute, the Court interpreted the VRA pragmatically and gave effect to Congress's aim in enacting the statute even if it meant interpreting both the statute and the Constitution elastically in order to do so. More importantly, the Court has generally viewed Congress and the Executive as its partners when interpreting the VRA. Consequently, the VRA, as it existed prior to the Court's recent decision in Shelby County v. Holder,4 was best understood as a joint product of Congress, the Executive, and the Court.

Shelby County marks the death of the VRA as a superstatute. Specifically, the Court struck down the Act's coverage formula, which identified the states that were subject to the Act's special provisions, and it effectively neutered the existing preclearance regime.5 This is significant; it signals that the partnership between Congress and the Executive, on one side, and the Court, on the other side, has disintegrated. With Shelby County and its herald, Northwest Austin Municipal Utility District No. One v. Holder ("Northwest Austin"),6 the Court is cautiously dismantling the most important civil rights statute in our nation's history. The strong message of Shelby County is that the voting rights era-and maybe much more broadly, the civil rights era-as we have known it, is over.

The question for the foreseeable future is where does voting rights policy go from here? Not surprisingly, voting rights activists have called on President Barack Obama and Congress to enact a new coverage formula.7 Indeed, a few weeks after the Shelby County decision, President Obama convened civil rights leaders to the White House to reassure them that his Administration is committed to a bipartisan fix for the Act.8 Attorney General Eric Holder, for his part, promised to use the remaining sections of the VRA to vigorously enforce voting rights policy. And as evidence of his commitment, Attorney General Holder filed suit in Texas and asked a lower court to use section 3(c) of the VRA to once again require the state to preclear some voting changes.9

As these early responses to Shelby County reveal, many of the proposed fixes and reactions to the decision reflect an attempt to restore the status quo ante. These early efforts have been aimed at promoting aggressive section 2 litigation, using section 3's bail-in provision, and using section 2 cases to craft a new coverage provision. Importantly, these strategies critically depend upon the continued persistence of racial discrimination in voting by state actors as the central problem of voting rights policy. This is because the most critical justification for the VRA has long been the presence, profundity, and persistence of intentional racial discrimination in voting by state actors.10 More importantly, modern voting rights law and policy is held together by a consensus that clearly understood the reality, pervasiveness, and extent of racial discrimination by state actors in democratic politics. …

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