Reconstructing section 5: a post-Katrina proposal for voting rights act reform.

• Author: Williams, Damian
• Position: Louisiana

NOTE CONTENTS INTRODUCTION I. AN "UNCOMMON" ENFORCEMENT TOOL A. Two Generations of Section 5 B. The Beer Retrogression Standard II. THE POST-KATRINA PRECLEARANCE PROCESS A. The Emergency Voting Plan B. The Preclearance Paradox III. RETROGRESSION RECONSIDERED 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 CONCLUSION INTRODUCTION

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." (21) The static benchmarking procedure detects movements in minority political power by comparing a proposed voting change to the existing voting laws in the jurisdiction seeking preclearance. If, applied to the current circumstances, the proposed law increases minority political power relative to the existing law, it is deemed "ameliorative" and is precleared. (22) If the proposed law diminishes minority political power, it is deemed "retrogressive" and is permanently enjoined from taking effect. (23) The static comparison thus guards against the crumbling of minority political power under the weight of new, retrogressive laws and ensures that, in the face of a retrogressive proposal, the status quo ante holds firm. (24)

Despite its unrivaled success in advancing and protecting minority political gains, (25) section 5 quietly suffered one of its most disappointing failures in the aftermath of Hurricane Katrina, as the static benchmarking test fell apart. Critically, static benchmarking assumes that current laws are capable of preserving existing minority political power; (26) indeed, it is the step that completes the test's "sixth-grade arithmetic." (27) Katrina shattered this assumption and, in the process, vindicated Justice Thurgood Marshall's prescient warning that static benchmarking "will not always be [able] to determine whether a new plan increases or decreases Negro voting power relative to the prior plan." (28) Marshall was concerned that in some contexts, a proposed law might always appear "positive--no matter how good or bad the result." (29)

Hurricane Katrina provided a perfect example of what Justice Marshall feared. The massive human displacement and immense election infrastructure damage caused by the storm rendered Louisiana's existing voting laws inadequate to conduct post-disaster elections: the number of absentee voters swelled, and those who remained in New Orleans lacked water, electricity, and stable shelter, much less access to polling locations and the Postal Service. (30) If Louisiana held a post-Katrina election with the pre-Katrina voting laws, minority voting power would collapse; (31) only aggressive procedural reforms could avoid this outcome. Yet when the state sought to preclear its emergency voting reforms, the static benchmarking test stubbornly relied on the inadequate pre-Katrina voting plan as a valid benchmark for comparison. Conceptually, this meant that compared to the broken pre-Katrina benchmark, almost any proposed law would appear ameliorative and would merit preclearance. A covered jurisdiction could therefore enact reforms that, despite improving existing laws, stopped far short of providing minority voters with the realistic opportunity to maintain their voting strength. (32) Simply put, Hurricane Katrina revealed a blind spot in section 5's enforcement powers.

This Note shines a critical light on section 5's post-Katrina failure and suggests a narrowly tailored doctrinal "fix" to repair the provision. The proposed model replaces the static benchmarking test with a more flexible counterpart that I call "dynamic benchmarking." Instead of automatically using existing voting laws as a benchmark, this procedure employs a multifactor examination to ensure that the current regime is actually capable of preserving minority political power. In the absence of a suitable existing benchmark, the dynamic test offers a "replacement benchmark"--a model voting plan that, if used after a disaster, would likely preserve minority influence. The replacement benchmark thus resurrects section 5's coercive power; if a covered jurisdiction proposes a post-disaster voting plan that is less robust than the replacement benchmark, preclearance will be denied. (33)

The discussion that follows proceeds in three Parts. Part I introduces section 5 and outlines its development. It then details the contours of the static benchmarking test that has long defined section 5's administration. Part II recounts for the first time the post-Katrina preclearance process and diagnoses section 5's inability to adapt to the unprecedented challenges posed by Katrina. Part III unveils the dynamic benchmarking model and argues that it is both necessary and justified to remedy section 5's weaknesses. Finally, the Conclusion calls on Congress to amend section 5 and to incorporate dynamic benchmarking as an alternative to the current static procedure. In addition to presenting traditional arguments for congressional action, it departs from doctrine to provide an alternative justification for the model I offer.

1. AN "UNCOMMON" ENFORCEMENT TOOL

   1. Two Generations of Section 5

      Since its enactment in 1965, section 5 of the Voting Rights Act has proven to be the nation's most innovative and successful civil rights enforcement tool. The provision's history is aptly divided into two "generations" of enforcement: the first generation focused primarily on providing equal access to the ballot box, while the second generation has been concerned with eradicating more subtle barriers to minority political empowerment. This Section briefly considers each generation in turn.

      The first generation of section 5 enforcement occurred in response to the "unremitting and ingenious" tactics employed by certain states and localities--mostly in the former Confederacy--to deny black citizens the right to vote despite contrary federal mandates. (34) Prior congressional attempts to enfranchise black voters had generally been ignored by recalcitrant jurisdictions, and "[i]n those relatively few instances when a court actually enjoined a discriminatory practice, the affected jurisdiction would simply adopt a new exclusionary tactic not covered by the court order--sometimes within twenty-four hours." (35) To thwart the "outguess[ing]" of congressional and judicial mandates, (36) section 5 forced covered jurisdictions (37) to obtain preclearance from the DOJ or a declaratory judgment from a special three-judge district court in the District of Columbia before a new voting...