Let's Not Call the Whole Thing Off Just Yet: a Response to Samuel Issacharoff's Suggestion to Scuttle Section 5 of the Voting Rights Act

• Publication year: 2021

84 Nebraska L. Rev. 605. Let's Not Call the Whole Thing Off Just Yet: A Response to Samuel Issacharoff's Suggestion to Scuttle Section 5 of the Voting Rights Act

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Michael J. Pitts*

Let's Not Call the Whole Thing Off Just Yet: A Response to Samuel Issacharoff's Suggestion to Scuttle Section 5 of the Voting Rights Act

TABLE OF CONTENTS

I. Introduction ...................................................... 605
II. Think Locally .................................................... 611
III. Georgia Is a Peach; New Jersey Is a Garden ...................... 618
IV. The Partisanship Problem ......................................... 623
V. Conclusion ........................................................ 630

I. INTRODUCTION

The Voting Rights Act(fn1) celebrates its fortieth birthday this year. Like many forty-year-olds, the Act must confront a mid-life crisis. In less than two years, several of its key provisions will expire.(fn2) Perhaps the most important of these expiring provisions is the preclearance mechanism of section 5,(fn3) a provision that has previously been hailed as the "heart of the Voting Rights Act."(fn4)

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Into this mid-life crisis steps Professor Samuel Issacharoff, who recently penned an important and meaningful contribution(fn5) to the emerging dialogue(fn6) over the extension of the preclearance requirement beyond its expiration in the summer of 2007.(fn7) In his work, Professor Issacharoff takes a stern, skeptical look at section 5, daring to question its current usefulness. And this represents no small step coming from a member of the generally liberal academic community,(fn8) where there tends to be too much willingness to criticize any steps that might be taken to modernize or scale back civil rights statutes to account for changed circumstances.(fn9) In that sense, Professor Issacharoff lends an important, well-respected voice of reason to what one surmises will soon be a chorus of academic and civil rights literature attempting to prove that, not only should section 5 be extended, it should be amended to restore some of the power to the federal government that the Supreme Court has rescinded in the past decade.(fn10)

In my view, there should be little debate about some of Professor Issacharoff's core propositions. It's not 1965 anymore.(fn11) Racial and ethnic minorities, whether African-American, Latino, Asian, or Native American, no longer find themselves blocked at every turn from registering and casting ballots.(fn12) Blatant and despicable discrimina

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tion no longer occurs on the widespread level at which it occurred four decades ago, and these changes in the electoral landscape don't just relate to the formal act of registering and casting ballots--a substantial number of minority faces now roam the halls of Congress, state legislatures, and in county seats and city halls.(fn13) To be sure, our Nation is by no means a society where voting-related discrimination against racial and ethnic minorities never occurs,(fn14) but our society today most certainly does not engage in anything approaching the widespread and rampant discrimination practiced between the post-Civil War Redemption and passage of the Voting Rights Act.(fn15)

Because it's not 1965 anymore, surely it's within the bounds of rational discourse to contend that a compelling reason no longer exists to keep the same "unique and stringent"(fn16) remedy that section 5 provides in place past 2007. Section 5, as currently written, represents an extraordinary mechanism in our law, as it bars certain (primarily Southern) state and local governments,(fn17) commonly known as the "covered jurisdictions," from implementing even the most minor(fn18) of

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voting changes without federal approval.(fn19) That federal approval-- which can be obtained through a declaratory judgment from a threejudge panel of the United States District Court for the District of Columbia or, as is most common, from the United States Attorney General(fn20)--only comes after the covered jurisdiction meets its burden(fn21) of proving the absence of a retrogressive purpose or effect.(fn22) Put another way, federal approval only comes after a state or local government demonstrates that, under the totality of the circumstances, minorities have not been placed in a worse position than they were in prior to the change(fn23) and that the state or local government did not intend to put minority voters in a worse position.(fn24) All this amounts to stiff medicine.(fn25) So, a few commentators (myself included) have already recognized the need to amend section 5, whether for policy reasons or to satisfy a Supreme Court with an inclination toward limiting Congress' ability to impose civil rights remedies on state and local governments.(fn26)

Had Professor Issacharoff merely described the modern electoral landscape and then set forth some ideas to update section 5, you would not be reading this response. But he goes further, strongly im

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plying,(fn27) though perhaps not definitively concluding,(fn28) that section 5 may deserve to go the way of the Independent Counsel(fn29) and be sent to the scrap heap in its entirety.

In the interest of brevity and at the risk of oversimplification (and knowing most readers can easily peruse his thoughts in the original), it seems fair to characterize Professor Issacharoff as focusing on the circumstances surrounding and the litigation involving statewide, post-2000 Census redistrictings undertaken in Georgia and New Jersey(fn30) to make three core points: first, that there appears to be no compelling reason for the law to treat minority voters in New Jersey, a state not covered by section 5, differently from minority voters in Georgia, a state subject to section 5 coverage;(fn31) second, that the Supreme Court's recent decision in Georgia v. Ashcroft(fn32) leaves section 5 with an unadministrable substantive standard for judging retrogression of minority voting rights and that combining an unadministrable standard with the emergence of political competition between the Republican and the Democratic Party in the covered jurisdictions allows section 5 to more easily be used as a tool for partisan manipulation by politicians in Washington;(fn33) third, that for these reasons, section 5 should be ended, not mended.

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In responding to Professor Issacharoff's core ideas, it is not my purpose to engage in a carte blanche defense of the section 5 status quo. However, I would respectfully suggest that, at a minimum, Professor Issacharoff places too much emphasis on section 5's relevance to congressional and statewide redistricting while neglecting the impact of section 5 on local government. Sure, congressional and statewide redistricting grabs the headlines, particularly inside the Beltway. As a former practitioner with the Voting Section of the Department of Justice, I can attest to the excitement generated at a dinner party by a discussion of North Carolina's "bug splattered on a windshield"(fn34) congressional redistricting plan while yawns need to be stifled when discussing the Attorney General's section 5 determination involving an annexation in some small South Carolinian town.(fn35) It also doesn't help that, in recent years, the Supreme Court seems to have most often gotten itself enmeshed in litigation involving congressional and statewide redistrictings, making it seem like that's the bulk of the ballgame for section 5.(fn36) In reality, it is not. The first aim of this Article then is to distinguish between congressional and statewide redistricting and the protection needed for minority voters at the local level, contending that protection of minority voting rights in local government represents section 5's most important modern-day function and that local government may not implicate many of the issues Professor Issacharoff raises in relation to congressional and statewide redistricting.

After distinguishing between state and local voting changes, I will then tackle the question "if Georgia, why not New Jersey?"(fn37) What I will argue is that Georgia's history of voting-related discrimination, both ancient and recent, markedly differs from New Jersey in such a way as to provide sufficient justification to continue to apply section 5 to Georgia's congressional and statewide redistrictings. In addition, I will argue that, at the state level, racially polarized voting is greater

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in Georgia than New Jersey. Importantly, a recognition of these differences does not lead inexorably to the conclusion that Georgia should be saddled with a post-2007 version of section 5 that mirrors the current version. Nor should one conclude that there are no localities in Georgia that should be removed from section 5 coverage and, conversely, that there are no localities in New Jersey that should be added to the section 5 fold. It's just to say that Georgia's history and racially polarized voting provide justification for continuation of a more limited version of section 5 beyond 2007.

Then there's partisanship. Professor Issacharoff correctly recognizes that partisanship could hamper the fair administration of section 5, particularly when the Court has carved out a less than clear standard for section 5 decision-making. But he overstates the partisanship problem. Essentially two partisanship problems could occur in the Attorney General's administration of section 5. The first occurs when one major political party controls Washington and the opposing major political party controls the state process. In this instance, the political party in Washington could intransigently withhold preclearance for the purpose of compelling the state political party to adopt a voting change, such as a redistricting plan, contrary to the state political party's interests. The second occurs when one political party controls both Washington and...