Many commentators assume that the conservative Supreme Court justices will strike down Section 5 of the Voting Rights Act. Like Abigail Thernstrom, however, we are not so sure. Congress clearly has the authority to continue to maintain Section 5. If the court does strike it down, though, it will give Congress an opportunity to update the act for the 21st century. In 2012, state legislatures passed many partisan initiatives designed to constrain the right to vote ‑ ranging from efforts to end same-day registration to adding voter identification laws. In Virginia, state senators used one colleague’s absence to pass a new, arguably discriminatory redistricting plan. In Indiana and North Carolina, new proposals would make it harder for some students to vote. Some states are considering tinkering with the way they choose electors to the Electoral College.
Some of these initiatives may have a disparate racial impact — and might be actionable under Section 2 of the Voting Rights Act. Some may even have been motivated by an intent to discriminate. But many of the actions that affect racial minorities seem to do so for partisan political purposes, not racial reasons.
Unless Congress can stop these partisan initiatives, the parties will increasingly target the other side’s voters for political gain. The American public, meanwhile, ends up as collateral damage.
Any possible legislative solution in this polarized environment is unlikely to focus on a particular substantive right — such as voter identification. Perhaps, however, Congress could delegate some authority to an administrative agency and empower citizens to better protect their rights.
This solution should try to preserve two critical features of Section 5: the pre-clearance requirement, which prevents discriminatory laws from going into effect, and the burden-shifting framework. The latter places the burden of proof on jurisdictions subject to Section 5 oversight – in other words, they must show that their laws do not have a discriminatory effect
Full Article: The partisan politics of election laws | The Great Debate.