If the Supreme Court strikes down the Voting Rights Act, many will argue that we should abandon the civil rights model of elections and opt for a national law setting uniform election standards that would protect every voter. I’m all for protecting every voter. But I would hate to lose what Section 5 provides – protections for racial minorities, in particular. The other protections against racial discrimination in voting – most notably, Section 2 of the Voting Rights Act – are too costly and cumbersome to protect racial minorities from the practices that Section 5 now deters. Section 2 works well for high-stakes redistricting battles, where the game is worth the candle. But for the myriad low-level discriminatory practices, no civil rights group has the resources to bring suit every time. We still need what Section 5 provides: a simple, quick and low-cost strategy for protecting minority voters.
The puzzle is how to create such a system without treading on whatever constitutional prohibitions the court sets up. If the court strikes down Section 5 for targeting some jurisdictions but not others, that problem can be solved by creating a nationwide scheme. After all, there’s plenty of discrimination outside the Deep South.
But the court could decide that requiring all states to pre-clear their changes is unduly burdensome. So how do we create a national scheme that doesn’t burden the states but still offers a low-cost remedy for civil rights violations?
An opt-in approach would create a simple, administrative procedure for enforcing the Voting Rights Act. It would allow minority voters to opt into the act when there is a problem, rather than forcing states to pre-clear thousands of unproblematic decisions. Such an approach would preserve a safety net for minority voters while excising the features that have put Section 5 at constitutional risk.
Section 5 requires jurisdictions subject to its oversight to pre-clear haystacks of innocuous practices – 15,000 to 24,000 each year – so the Justice Department 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.
Full Article: Opting into the Voting Rights Act | The Great Debate.