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.

Bruce Cain, a political science professor at Berkeley, and Daniel Tokaji, an associate law professor at The Ohio State University, argue that states with low participation rates should be required to issue “electoral impact statements,” which would discourage practices that suppress turnout among poor and minority voters.

In avoiding the question whether a key section of the Voting Rights Act violates the Constitution, the U.S. Supreme Court has provided a welcome respite for civil-rights advocates worried that a cornerstone of racial justice would be decimated. The fact remains, however, that there are some serious cracks in the foundation of voting-rights law that need to be addressed. Foremost among them is the current law’s failure to adequately deal with practices that may impede participation by people of color and lower socioeconomic status. Even though the VRA has been left standing, at least for the moment, the current Congress should get to work filling these cracks promptly.

In the earliest years of the Voting Rights Act, the central problems were discriminatory barriers to participation, like literacy tests. These practices are sometimes referred to as “vote denial” because they prevented eligible citizens from voting or having their votes counted. In later years, the emphasis shifted to “vote dilution,” especially practices like at-large elections and unfair legislative districts that weakened minorities’ representation, even where they were allowed to vote.

Since the 2000 election, the pendulum has swung back to vote denial. Confusing voting equipment, inaccurate registration lists, and onerous voter-identification rules were all revealed to be barriers to equal participation. Collectively, these practices can be thought of as a new form of vote denial. But the VRA has not kept pace with this change. Though effective in combating minority vote dilution, it has been remarkably ineffective in eliminating barriers to equal access.

We recommend that Congress adopt a new form of preclearance, applicable to rules and practices that affect voter participation. States would be covered if participation rates fell below a certain prescribed level for a set period of time -- say, three consecutive federal election cycles. Those states would be subject to special requirements designed to prevent practices that disproportionately exclude minorities and people of lower socioeconomic status.

In particular, covered states would be required to issue an “electoral impact statement,” analogous to environmental impact statements, before changing voting rules. Election officials would be required to consult with representatives from the affected communities, including minority groups in preparing this statement. For example, if authorities decided to close down an early voting center that principally served the black community in a given county, they would have to provide a basis for their decision. We need a 21st-century approach to voting rights, one that targets the right parts of the country and makes sure that poor people and racial minorities are able to participate fully in our democracy.

--Bruce Cain & Daniel Tokaji

For more on Cain and Tokaji's take, read their white paper on Section 5 at the Tobin Project.