Our Voting Rights series continued: Heather Gerken, a law professor at Yale University, suggests an opt-in approach to the Voting Rights Act.

An opt-in approach would create a simple, administrative procedure for enforcing the Voting Rights Act, allowing minority voters to opt into the VRA when there is a problem, rather than forcing states to preclear thousands of unproblematic decisions. Such an approach would preserve a sturdy safety net for minority voters while excising the features that the Court has hinted render Section 5 unconstitutional.

The Court’s decision in NAMUDNO suggests that Section 5 may be unconstitutional because it imposes heavy burdens on select jurisdictions. It requires jurisdictions to preclear haystacks of innocuous practices -- 15,000 to 24,000 each year -- so that the Department of Justice can spot the discriminatory needle. An opt-in approach would present the DOJ with needles not haystacks; it would focus only on practices that minority communities find discriminatory. The result would be a more flexible, locally informed, and targeted enforcement strategy.

Under an opt-in approach, jurisdictions need not preclear every change. Instead, civil-rights groups and community leaders would “opt in” to the Voting Rights Act only where there’s a problem, filing a simple, one-page complaint with the DOJ. DOJ staffers would look into claims that raise red flags and suspend discriminatory changes to voting procedures. Like Section 5, the opt-in approach can ferret out both small-bore and large-scale discrimination, as it relies on a low-cost administrative procedure rather than a costly law suit. Unlike Section 5, it minimizes the burdens placed on local officials while concentrating DOJ resources on genuine problems. An opt-in approach thus rids Section 5 of its potentially burdensome features while ensuring that DOJ can keep pace with the changing face of discrimination.

One might worry that community leaders and public interest groups shouldn’t be responsible for doing the legwork needed to initiate an investigation. But that’s how Section 5 has always worked. The DOJ has never had enough resources to review every change, so staffers rely on a network of civil-rights advocates and minority representatives to help them sort the wheat from the chaff. Going forward, the only difference is that the decision about which changes get investigated will be made in the first instance by community representatives, not distant bureaucrats in Washington. This sort of cooperative regulatory strategy has a proven track record in other areas where the stakes are high and enforcement resources are sparse.

--Heather Gerken

For more on Gerken's take, read her white paper on Section 5 at the Tobin Project or her write-up at Election Law Blog.