Voting Rights Act Must Be Amended By Supreme Court

Court challenges to the Voting Rights Act are all the rage these days. Reuters reports that there have been more challenges in the last two years than in the Act’s previous 45-year history. I bet you’re thinking, “They’re all about Voter ID.” You’d be wrong. Texas and South Carolina are challenging the Department of Justice’s rejection of their Voter ID legislation, but those cases are not the only challenges out there. The SCOTUS may hear two cases during its 2012-13 term that don’t target Voter ID; those of Shelby County, Alabama, and Kinston, North Carolina. They challenge sections of the Voting Rights Act that Voter ID advocates would love to see disappear. Should these challenges succeed, Texas, Alabama, South Carolina, and Mississippi would see the last legal barriers to Voter ID implementation vanish. I’m not suggesting that’s either good or bad, but read the DOJ’s own history of the Voting Rights Act and one thing becomes clear: It’s much easier to get into its clutches than to get out. I understand the plaintiffs’ concerns, but I also understand the need for a living, breathing election monitoring process to ensure that all eligible voters can exercise their franchise without interference. We need a 21st century Voting Rights Act that efficiently detects cases of election discrimination according to up-to-date standards, and also rewards covered jurisdictions’ good behavior by releasing them from supervision.

Here’s how the Voting Rights Act works: A state or lower jurisdiction is guilty of discriminatory voting rights practices by having discriminatory laws in force or not achieving a 50% voter registration rate or election turnout during a base year. Jurisdictions found guilty of voting rights discrimination fall under the Act’s coverage. As “covered jurisdictions,” they must both end discriminatory practices and “pre-clear” new election-related initiatives such as passed legislation or executive orders before they can take effect. This requirement continues until the covered entity initiates a “bail-out” process by which it demonstrates that it and all subordinate jurisdictions have eliminated discriminatory practices and complied with the Act’s provisions over a 10-year period.

Sounds good, but reviewing the DOJ’s history left the following two impressions:

1. The base years for determining coverage only change by Congressional amendment. The 1970 amendment changed the base year from 1964 to 1968; the 1975 amendment changed the base year from 1968 to 1972. There has been no change since, and the Act is next up for renewal in 2031. So these metrics are useless for detecting new cases of election discrimination.

2. More jurisdictions enter coverage than leave. Both the 1970 and 1975 amendments added jurisdictions to coverage. A “bail-out” process was clarified in the 1982 amendment, but counties have been the largest types of jurisdiction to use it. Most areas covered by the Act have had their electoral processes federally supervised for 35 years or longer.

In short, the Act is a case of stagnant regulation. Its processes treat conditions that existed in the 1960s and 1970s without proactively rewarding progress. Its standards for putting jurisdictions in coverage do not change with the times, they still are mired in the Watergate era.

Here’s what I would do:

1. Index the base year to the most recent presidential election. Instead of using an amendment to change the year against which jurisdictions are judged, define the base year as that of the most recent presidential election. That is the standard set by both the original law and its 1970 and 1975 amendments.

2. Set standards for ending coverage. The current bail-out system sets criteria that jurisdictions must meet to exit coverage, but the jurisdictions must assemble the supporting evidence and initiate the bail-out process. A system that regularly collects compliance data and automatically rewards good behavior by ending pre-clearance would make the Act a more dynamic force. Measures to handle repeat offenders would be necessary, but the alternative is stagnation.

We live in times where the federal government needs to get the maximum bang from every buck it spends. This means that no process, not even a landmark one, should be exempt from continual review. In the case of the Voting Rights Act, a process that automatically updates the evaluated base year and eases exit from coverage might do more than insure the integrity of the process. It might be just what is needed to reduce the volume of Voting Rights Act litigation, which would save time and money as well.