NATIONAL PROTECTIONS FOR THE RIGHT TO VOTE.

Yesterday, the Supreme Court issued a decision that avoided ruling on the constitutionality of Section 5 of the Voting Rights Act (VRA). While the VRA is intact for now, its future is ultimately in jeopardy. Today, TAPPED will feature guest posts from legal scholars offering suggestions on how the United States should move forward on the issue of electoral rules that discriminate.

Richard H. Pildes, a law professor at New York University, argues that Congress should respond not by trying to rejigger Section 5, but by adopting national, universal voting-rights protections.

Yesterday, the Supreme Court gave Congress a reprieve on the Voting Rights Act, but a temporary one. The Court strongly suggested the act’s constitutionality is in doubt, unless Congress confronts issues it passed over in 2006, when it last addressed the act. The question, then, is what Congress and the president ought to do.

In my view, the Court’s decision presents one of the best opportunities in many years to press for serious voting-rights legislation. To seize this opportunity properly, we need to begin by appreciating that two different models for national voting-rights legislation exist. If Congress gears up to respond to the Court’s decision, the initial choice between these two models will be, far and away, the most important one Congress faces.

Section 5 was historically an important tool, but it represents only one model of how the national government might protect voting rights. I called this a “targeted” or anti-discrimination approach. When the national government first began protecting voting rights, in the aftermath of the Civil War, this is the form national legislation took. In this first model, Congress does not protect the right to vote as such but enacts more narrowly targeted legislation. Section 5 is targeted in two ways. First, it singles out particular areas of the country for unique federal oversight. Second, it singles out one particular reason, race, that voting rights might be denied or abridged. For much of post-Civil War constitutional history, the national government was thought to have power to protect voting rights only against racial discrimination. That is partly why this kind of targeted model of national voting-rights legislation has been historically so important.

The second model emerged only more recently and is reflected in the national legislation of the last 20 years, (e.g. the National Voter Registration Act and the Help America Vote Act). I call this a “substantive right-to-vote" model. This vision is universal in geographic scope and protects the right to vote as such, rather than protecting only against racially discriminatory denials of voting rights in selected areas.

In the immediate wake of the Court’s decision, there might be much scrambling to try to find a way to reconfigure yet another version of Section 5’s targeted model. But the deeper insight, I believe, is to recognize that targeted models of this sort grew out of the political and constitutional constraints of earlier eras -- constraints that, at least on the constitutional side, no longer exist. Moreover, targeted laws of this sort are inherently limited: They require difficult, often intractable, efforts to sort out whether a law that impinges on voting rights is racial in character or not. Moreover, the Court that just cast doubt on the constitutionality of the current Section 5 will surely insist that any reconfigured Section 5 prohibit only voting practices that can be tied to a discriminatory purpose, rather than banning practices that have racially disparate impacts alone. This will further limit the effectiveness of even a refigured Section 5.

Instead, we can more effectively protect voting rights over the next generation, including those of minority voters, if we channel policy efforts toward the more modern model of national legislation that protects the substantive right to vote against all unreasonable and unjustified limitations.

--Richard Pildes

For more on Pildes' take, read his white paper on Section 5 at the Tobin Project.

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