50 Years of Conflict Over Voting Rights – Mourning and Hope

Jim Rutenberg has written a must-read cover story for the New York Times magazine about the Voting Rights Act, providing context for the relentless pressure exerted by segregationists to kill black voting throughout the history of that landmark act.

This story has come out at the same time that Professor Heather Gerken has written a mournful look back at the Voting Rights Act. Her elegiac commentary on a recent scholarly article in the Iowa Law Review is both somber and despairing.

Because I favor the use of a purely regulatory expansion of administrative oversight of the Civil Rights Act as a substitute for the moribund Voting Rights Act “superstatute,” I perked up at this paragraph in Professor Gerken’s introduction:

• Regulatory schemes have a funny habit of surviving, in large part because they become normalized after a few years. I have little doubt that a civil rights statute would be trimmed by this Court and subject to inconsistent levels of enforcement, depending on the administration. But if it were possible to pass a new statute—and that’s an enormous “if” in an era in which Congress is all but sclerotic—it’s not clear to me that it would be destined for failure. The Department of Justice has administered the VRA under executives of all sorts, and the federal courts include many a judge willing to apply the law as-is. A new civil rights-oriented statute might limp along at times, but the game might still be worth the candle.

Gerken, An Academic Elegy, 100 Io. L. R. 109, 115 (2015).

The subject of Professor Gerken’s elegy is the paper by Guy-Uriel Charles and Luis Fuentes-Rohwer, “The Voting Rights Act in Winter: The Death of a Superstatute.” Briefly, that paper masterfully recounts the political climate in 2006 that caused Congress to fail in any meaningful way to revitalize or expand the scope of the Voting Rights Act, and the sea change in American politics that rendered the traditional, geographically limited scope of Section 5 coverage of certain “troubled” political jurisdictions untenable.

Today, race and party are inextricably intertwined; the Republican Party has effectively transformed itself into the Apartheid Party, (amply demonstrated by how well Donald Trump’s explicitly segregationist campaign plays with Republican voters) while the Democratic Party has by default taken on the role of the anti-apartheid faction. The subversion of race and class issues in pursuit of the Republican Party’s concrete practical goal of winning elections means that (1) the traditionally Southern brand of focused anti-black bigotry has now been successfully exported to almost all jurisdictions, and (2) has been broadened to its natural conclusion, to target not just protected classes of minority voters for suppression, but to extend voting suppression efforts to all likely Democratic Party voters.

Of course, in one sense the suppression of racial equality has always been about winning elections; in another sense, racial discrimination has always been a root motivator for at least some part of American political competition; bigotry (as an inherent cultural element) and the exploitation of bigotry (as a viable political tactic or strategy in the pursuit of power) are just reflected elements of our nation’s original sin.

My bias is that I believe my solution to the problem (applying anodyne, depoliticized regulatory “reporting” rules that give the Department of Justice the ability to track changes in election procedures) at least points to the way out of this dilemma, and perfectly dovetails with the legal prescriptions offered by Professors Charles and Fuentes-Rohwer, for three reasons.

1. My proposed reporting rules aren’t predicated on historical or geographic patterns of racial discrimination, but instead apply to all jurisdictions equally, and without singling any specific jurisdiction or jurisdictions out based on prior bad acts; and

2. My proposed reporting rules are enforced by robust, explicit monetary incentives (i.e., through the threat of withholding federal funding from political jurisdictions that fail to comply), using tried and well-understood Civil Rights Act enforcement tools.

3. My proposed reporting rules may be adopted by purely executive action without the involvement of the vestigial and powerless Congress.

Not to keep harping on this … but, well, yes …, to keep harping on this. The loss of the preclearance mechanism of Section 5 of the Voting Rights Act was devastating to the effective management of fair elections in the United States. Therefore, some regulatory balance must be restored by adopting a replacement regulatory process.