The promise and pitfalls of the new Voting Rights Act.

• Author: Persily, Nathaniel

ARTICLE CONTENTS INTRODUCTION I. THE PATH OF LEGISLATION A. The VRARA in the House: Channeling Dissent into Failed Amendments B. The VRARA in the Senate: Channeling Dissent into Postenactment Legislative History II. THE EVIDENTIARY RECORD A. Rates of Minority Voter Turnout, Registration, and Officeholding B. Evidence Concerning the Preclearance Process: Rates of Submissions, Denials, and Requests for More Information C. Voting Rights Violations in Covered Jurisdictions III. WHY THE BASIC STRUCTURE OF THE LAW REMAINS INTACT A. Retaining the Same Coverage Formula B. Bailout C. The Section 5 Enforcement Regime IV. THE NEW STANDARD FOR RETROGRESSION A. Preferred Candidates of Choice 1. Minority Candidate 2. Democratic Candidate 3. The DOJ's Most Recent Approach and the One Likely To Be Followed 4. Candidates Uniquely Preferred by Minorities 5. The Role of Incumbency in Determining Candidate of Choice B. The Ability To Elect 1. No More Tradeoffs for Influence Districts 2. "Naturally Occurring" Majority-Minority Districts? 3. The Importance of Racial Bloc Voting to the Ability To Elect 4. "Ability To Elect" as a Continuous or Dichotomous Variable? C. Diminishing 1. Ability To Elect per District or Across Districts? 2. Diminution Through Overconcentration and Underconcentration of Minority Voters 3. The Art and Science of Measuring Diminution in the Ability To Elect CONCLUSION INTRODUCTION

In the series of cases that have made up the Supreme Court's recent jurisprudence concerning congressional power to protect civil rights, the Voting Rights Act (VRA) has been the standard against which all other statutes are judged. (1) Unlike other civil rights statutes that may have swept too broadly in their geographic reach and permanent duration, section 5 of the VRA (2) targeted a limited number of geographically defined wrongdoers (3) and did so for a limited time. (4) Unlike those constitutionally precarious statutes that may have elevated classes from the lower tiers of Fourteenth Amendment scrutiny, (5) the VRA dealt specifically with race (a classification that is "immediately suspect" (6)) and with voting ("a fundamental political right, because [it is] preservative of all rights" (7)). And unlike those statutes with a tenuous relationship to unconstitutional state action, (8) the VRA was built on a record of persistent constitutional violations by state actors who were unapologetic in their defiance of federal court orders. (9)

Because Congress acted at the apex of its power to enforce the guarantees of the post-Civil War Amendments in passing the VRA, the Court could stomach the tough medicine that is section 5 of the Act. That measure stands alone in American history in its alteration of authority between the federal government and the states and the unique procedures it requires of states and localities that want to change their laws. No other statute applies only to a subset of the country and requires covered states and localities to get permission from the federal government before implementing a certain type of law. (10) Such a remedy was necessary because case-by-case adjudication of voting rights lawsuits proved incapable of reining in crafty Dixiecrat legislatures determined to deprive African Americans of their right to vote, regardless of what a federal court might order. (11)

Congress intended the expiration of section 5 to force the nation to take stock of its progress, or lack thereof, in achieving equal voting rights, as well as to adapt the law to new challenges and changing political realities. Those who originally crafted the law, however, could not have foreseen how section 5 would become, in both substance and symbolism, a cornerstone of the architecture of federal election law and civil rights guarantees. As each election reminds us of how far we need to go in securing the equal right to vote, the notion that we might allow this most successful of civil rights protections to die on the vine has become so unacceptable that Congress has now reauthorized this "emergency" provision for another twenty-five years.

Elsewhere I have described how the VRA could have been transformed to address the problems facing minority voters that constituted the principal justification for the law. (12) Even for many who favored renewal, the reauthorization process in the summer of 2006 represented a missed opportunity to deal with some of these problems. In addition to the political and judicial constraints placed on the reauthorization debate, the specter of returning to an age and political environment first disciplined by section 5 of the VRA paralyzed any attempt to use this opportunity to address the most pressing voting rights challenges.

This Article attempts to explain the constraints on the process that led the law to take the form that it did and to identify the best evidence in the legislative record to ensure the law's constitutionality. More important from the standpoint of those wishing to interpret or enforce this new law, this Article provides an interpretation of the law's key provision that would allow it to do more good than harm. Part I provides a summary of the unique legislative history of the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 (the VRARA, or the new section 5). (13) As with other legislation, disagreements about the statute's meaning were passed on to the courts, and various legislators attempted to manipulate legislative history for partisan ends. Never before in American history, however, has a Senate committee that unanimously voted in favor of a law later published a postenactment committee report that was supported only by members of one party. Part II examines the sufficiency of the evidentiary record assembled by Congress to justify the continued operation of section 5 in the areas that it currently covers (the "coverage formula" or "trigger"). Section 5 applies only to certain parts of the country, based on voting practices and data that are at least thirty years old. The novel constitutional question posed by this law was how Congress could provide a record of constitutional violations necessitating the continuation of a law that, if it works as intended, prevents such evidence from emerging. Part III explains why the law had to take the form that it did, despite widespread concerns about the coverage formula and statutory architecture. Various proposals to tinker with the well-known section 5 procedures--namely, where it should apply, how jurisdictions might escape its constraints, and how the law would be administered--faced an uphill battle and were soundly defeated. Part IV forms the bulk of this Article and offers an interpretation of the key provision of the new section 5: the new retrogression standard that prevents covered jurisdictions from enacting or administering voting laws that "diminish" minority voters' "ability ... to elect their preferred candidates of choice." (14) The proposed interpretation, which focuses on the extent of racial polarization in the electorate, represents an attempt to save the law from likely constitutional challenges and from enforcement patterns that would contradict the underlying purposes of the law.

The Conclusion presents an argument presaged here. The descriptive and normative sections of this paper are united by a common appreciation for the unprecedented political context in which this reauthorization occurred. In a sense, as compared to the legislative efforts of twenty-five and forty-two years ago, everything should have been different for this reauthorization. The constitutional test the courts would now apply never before cast a shadow on legislative bargaining. The partisan stakes, never before accorded much significance, were now well known. The most salient threats to minority voting rights had evolved beyond the categories and geography contemplated by the VRA. Nevertheless, the fear and uncertainty of what the world would be like without it allowed transformation only in the direction of restoring the Act to its original meaning. The consequences of this altered political reality do not end with the passage of the law, however. Despite historically familiar purposes and language, the VRA begins to mean something different when grafted onto a political system that it helped shape.

1. THE PATH OF LEGISLATION

   When considered in the abstract, and against the history of American election reform and civil rights legislation, the 2006 reauthorization of the VRA by a near unanimous vote represents a remarkable, even if predictable, achievement. (15) The vote was remarkable in that almost all participants in the policy debate recognize that section 5 of the VRA represents a unique exception to the normal functioning of federalism and partisan politics; many Republicans consider it offensive to their notions of color-blindness and states' rights, and some Democrats see it as counter to their political interests. (16) The vote was predictable, however, in that virtually no one wanted to be on record opposing the legislation. (17) Republicans who may have disagreed with the legislation in principle nevertheless viewed it as largely serving their political interests. Most of them considered redistricting pursuant to aggressive enforcement of section 5 as creating inefficient Democratic districts. Moreover, the legislation appeared to be a relatively costless step toward thawing relationships with African Americans and maintaining gains among Hispanic supporters. On the other hand, most Democrats supported the reauthorization in principle, and those who did not considered opposition (or even amendment) to constitute political suicide.

   1. The VRARA in the House: Channeling Dissent into Failed Amendments

      Despite the widespread consensus in favor of reauthorization, many potential obstacles could have derailed the steady progress toward renewal. (18) One...