In Defense of a Voting Rights Act Amendment

As the Senate opens hearings today on whether updates are needed to this historic legislation, one suggested change would use monitoring and negotiation to protect rights.

It's rare to see something new on the Hill these days. Congress is all but paralyzed, everyone is wary of proposing legislation, and members of Congress have never been known for thinking outside the box. And yet the Voting Rights Amendment Act of 2014 (VRAA)--Cong. James Sensenbrenner's bipartisan effort to revive Section 5 of the Voting Rights Act, which was effectively eviscerated by the Supreme Court last summer--was introduced earlier this year. And it offers a new paradigm for civil rights enforcement.

Today, the Senate Judiciary Committee will open a hearing where activists, legislators, and other interested parties will share ideas about just what sort of Voting Rights Act changes are sorely needed. Whether the VRAA succeeds, or even manages to become law, is anyone's guess. But provisions of the bill are worth watching closely because they could reproduce some of the magic of the old Section 5.

Section 5 used to require certain jurisdictions (mostly states in the Deep South) to ask the federal government's permission before making a change in the way they ran elections. Until a rule was "precleared," it could not be implemented. This unusual provision solved the central problem of voting-rights enforcement during the Civil Rights era--keeping up with the increasingly creative strategies recalcitrant localities used to disenfranchise voters. Every time a court deemed one discriminatory practice illegal, local officials would switch to another. Section 5 allowed the Department of Justice to get one step ahead of local officials.

Last year, the Supreme Court destroyed Section 5's foundations by insisting that the "coverage formula," which determined which jurisdictions had to preclear their changes, violated the principles of federalism by treating some states differently than others. In an effort to avoid this problem, the proposed VRAA would require all jurisdictions to publicize changes to their voting systems in advance and would make it easier for civil rights groups to stop those changes from taking effect--at least temporarily--when challenging them in court. Many have been disappointed by the fix because it's not nearly as powerful a weapon as Section 5. But it may make possible the behind-the-scenes bargaining that did much for civil rights enforcement under Section 5.

We tend to focus on the most visible moments in Section's 5 history, those when the Justice Department forbade jurisdictions from implementing this or that policy. Less noticed, but no less important, were the invisible dimensions of Section 5 enforcement--the behind-the-scenes bargaining that took place before preclearance was granted or denied. The Justice Department would work with local officials and representatives of minority voters to hammer out a solution before a preclearance denial was issued. This process of give-and-take often enabled local officials to figure out a way to do what they wanted to do without unduly burdening minority voters or limiting their participation. It was a chance for local input, for local tailoring, for both sides to learn about each other's perspectives.

Voting rights expert Ellen Katz, in astutely describing how this process worked with regard to South Carolina's voter ID law, noted that this behind-the-scenes process "provided a forum in which interested and affected parties were able to identify, dispute, and ultimately address the burdens a proposed electoral rule threatened to impose on minority voters."

While this is not typically how we think of civil rights enforcement, this type of negotiation between government, interest groups and the would-be plaintiffs and defendants on any given issue--is common in other enforcement areas. It can offer an efficient and effective regulatory strategy for insuring that workplaces are safe, that businesses grow without harming the environment or hurting consumers, and a range of other complex tasks for which enforcement resources are in short supply and case-specific judgments matter.

A combination of nationwide coverage, transparency measures, and the right incentives for bargaining could reproduce a similar dynamic in the voting rights context. The proposed VRAA clearly offers two of the three with its requirement that all localities publicize their voting rules in advance.

The real question is whether local officials have sufficient incentive to bargain under the terms of the proposed VRAA. Local officials came to the negotiating table under the old Section 5 because they feared their requests for preclearance would be denied. Section 5 hung like the sword of Damocles over every negotiation, providing the Department of Justice and racial minorities crucial leverage in the negotiating process. We don't yet know whether the proposed VRAA's leverage--the risks of public outcry against communities accused of infringing on minority voting rights and the threat of litigation--will be enough of an incentive to induce local officials to compromise before a lawsuit gets filed.

Should the VRAA's new regulatory strategy succeed in facilitating the behind-the-scenes bargaining that made Section 5 such a powerful tool in the civil rights arsenal, the legislation will continue the storied tradition of the Voting Rights Act. Section 5 was one of the most novel and creative civil rights enforcement strategies ever devised. What we need is a similarly creative strategy for 21st century voting-rights enforcement. Let's hope that the proposed VRAA can supply it.

Heather Gerken, an expert on election law, is a professor at Yale Law School.

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