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Future of the Voting Rights, The

Future of the Voting Rights, The

David L. Epstein
Richard H. Pildes
Rodolfo O. de la Garza
Sharyn O’Halloran
Copyright Date: 2006
Published by: Russell Sage Foundation
Pages: 388
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  • Book Info
    Future of the Voting Rights, The
    Book Description:

    The Voting Rights Act (VRA) stands among the great achievements of American democracy. Originally adopted in 1965, the Act extended full political citizenship to African-American voters in the United States nearly 100 years after the Fifteenth Amendment first gave them the vote. While Section 2 of the VRA is a nationwide, permanent ban on discriminatory election practices, Section 5, which is set to expire in 2007, targets only certain parts of the country, requiring that legislative bodies in these areas—mostly southern states with a history of discriminatory practices—get permission from the federal government before they can implement any change that affects voting. In The Future of the Voting Rights Act, David Epstein, Rodolfo de la Garza, Sharyn O’Halloran, and Richard Pildes bring together leading historians, political scientists, and legal scholars to assess the role Section 5 should play in America’s future. The contributors offer varied perspectives on the debate. Samuel Issacharoff questions whether Section 5 remains necessary, citing the now substantial presence of blacks in legislative positions and the increasingly partisan enforcement of the law by the Department of Justice (DOJ). While David Epstein and Sharyn O’Halloran are concerned about political misuse of Section 5, they argue that it can only improve minority voting power—even with a partisan DOJ—and therefore continues to serve a valuable purpose. Other contributors argue that the achievements of Section 5 with respect to blacks should not obscure shortcomings in the protection of other groups. Laughlin McDonald argues that widespread and systematic voting discrimination against Native Americans requires that Section 5 protections be expanded to more counties in the west. Rodolfo de la Garza and Louis DeSipio point out that the growth of the Latino population in previously homogenous areas and the continued under-representation of Latinos in government call for an expanded Section 5 that accounts for changing demographics. As its expiration date approaches, it is vital to examine the role that Section 5 still plays in maintaining a healthy democracy. Combining historical perspective, legal scholarship, and the insight of the social sciences, The Future of the Voting Rights Act is a crucial read for anyone interested in one of this year’s most important policy debates and in the future of civil rights in America.

    eISBN: 978-1-61044-189-6
    Subjects: Law, Political Science

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Contributors
    (pp. vii-viii)
  4. Acknowledgments
    (pp. ix-x)
  5. Introduction
    (pp. xi-xviii)

    The Voting Rights Act (VRA) is a sacred symbol of American democracy. The act, the most effective civil rights statute ever enacted in the United States, was the last significant stage in the nearly universal formal inclusion of all adult citizens in American democracy. Yet when laws in a democracy take on the status of sacred icons, the risk arises that they will be viewed as appropriate only for reverence, rather than for the public discussion, analysis, and debate that characterize sound and legitimate policy making. That risk is particularly great with the VRA, because that phrase represents and means...

  6. Chapter 1 Political Competition and the Modern VRA
    (pp. 1-19)
    Richard H. Pildes

    Political equality is often viewed as one of the central political and constitutional values, or even the central value itself, that explains and justifies democratic self-government. Theorists seek to deduce, from the value of political equality, numerous and varied implications for the way democratic processes should be structured. Much of the constitutional law concerning democratic institutions, such as the malapportionment decisions, are justified in the name of judicially enforcing constitutional commitments to political equality. Some of the most important statutes Congress has enacted, such as the Voting Rights Act (VRA), aim to secure values of political equality in the electoral...

  7. Chapter 2 The Law of Preclearance: Enforcing Section 5
    (pp. 20-37)
    Peyton McCrary, Christopher Seaman and Richard Valelly

    In August 2007, several special provisions of the Voting Rights Act (VRA) of 1965—the “preclearance” requirement set forth in section 5 of the act, the authority of the Department of Justice to use federal examiners and observers, and protections for the voting rights of language minorities—will expire, unless extended by congressional action. Of the provisions due to expire, the most important for the protection of minority voting rights over the years has been the preclearance requirement. Jurisdictions covered by section 5, for the most part states of the former Confederacy, must obtain federal approval of voting changes, either...

  8. Chapter 3 Rethinking Section 5
    (pp. 38-60)
    Guy-Uriel E. Charles and Luis Fuentes-Rohwer

    It is hard to believe that section 5 of the Voting Rights Act (VRA) was once the crown jewel in one of the most successful regulatory schemes ever promulgated by Congress.¹ In the twenty or so years that have elapsed since Congress last extended section 5, the provision has lost some of its luster to the point that scholars, politicians, and activists are debating seriously whether it has outlived its usefulness. In this vein, some commentators have argued that Congress should not renew section 5 because voters of color in covered jurisdictions no longer need the assistance of the Department...

  9. Chapter 4 Trends in Minority Representation, 1974 to 2000
    (pp. 61-80)
    David L. Epstein and Sharyn O’Halloran

    Following the 2000 Census, Georgia redrew its fifty-six state senate districts to comply with the one-person-one-vote rule. At the time, the assembly and senate both had Democratic majorities. The governor, Roy Barnes, was a Democrat as well, and led the charge to construct a districting plan that could stem the expected Republican tide in the upcoming 2002 elections.

    The key to this plan was to “unpack” many of the heavily Democratic districts and distribute loyal Democratic voters to surrounding districts. In particular, black voters were reallocated away from districts with either especially high or low levels of black voting age...

  10. Chapter 5 Congressional Power to Renew Preclearance Provisions
    (pp. 81-106)
    Richard L. Hasen

    In 1965, Congress enacted the Voting Rights Act (42 U.S.C. sec. 1973–1973p). Section 5 of the act requires that “covered jurisdictions” obtain preclearance from the federal government before making any changes in voting practices or procedures. Section 5’s aim was to prevent state and local governments with a history of discrimination against racial minorities from changing their voting rules without first proving that such changes would have neither a discriminatory purpose nor effect.

    Never before (or since) has a state or local jurisdiction needed permission from the federal government to put its own laws into effect. Covered jurisdictions protested...

  11. Chapter 6 Does Section 5 of the Voting Rights Act Still Work?
    (pp. 107-124)
    Samuel Issacharoff

    The approaching renewal date for section 5 of the Voting Rights Act (VRA) raises questions about both the purpose of the act at this point and the administrative mechanisms the act employs. The legislation was premised on a deep sense of national urgency over the exclusion of black Americans from meaningful political participation in significant parts of the country—those areas that fell within the newly created concept of section 5 covered jurisdictions. Section 5 placed political life in those jurisdictions under a form of administrative receivership and treated political activity within those areas as subject to a rebuttable presumption...

  12. Chapter 7 Voting Rights Act Enforcement: Navigating Between High and Low Expectations
    (pp. 125-138)
    Bruce E. Cain and Karin MacDonald

    The enactment of and subsequent amendments to the Voting Rights Act of 1965 (VRA) were critical moments in the evolution of contemporary American election law. The VRA’s dramatic impacts upon the transformation of southern politics, the enfranchisement of the African-American community and the rising power of Latinos in the West are well-documented. (Davidson and Grofman 1994; Kousser 1999). In 2007, the Congress must consider whether section 5, a critical component of the VRA, should be renewed. Many varied considerations—political, legal, and symbolic—will ultimately determine the prospects of section 5 renewal and of any amendments to it that might...

  13. Chapter 8 Reshaping the Tub: The Limits of the VRA for Latino Electoral Politics
    (pp. 139-162)
    Rodolfo O. de la Garza and Louis DeSipio

    The extension of the Voting Rights Act (VRA) to Latinos¹ and other language minorities (Asian Americans, American Indians, and Alaskan Natives) in 1975 signals a major transformation in how the national political system responds to its nonwhite ethnic and racial populations. By extending the procedural guarantees and protections of the 1965 VRA to Latinos² and other language minorities, Congress broadened the nation’s understanding of ethnic and racial electoral participation. Institutionally, extending these procedural guarantees and protections assured Latinos and the other covered language minorities that states and localities could not deny them access to the electoral process because of their...

  14. Chapter 9 Expanding Coverage of Section 5 in Indian Country
    (pp. 163-202)
    Laughlin McDonald

    Recent voting rights litigation in Indian country, with its findings of widespread and systematic discrimination against Indians, underscores the need for continuing the special preclearance and language minority provision of the Voting Rights Act (VRA). It also makes a strong case for extending the preclearance requirement throughout the West, not simply to the relatively few counties covered under existing law.

    Congress amended the Voting Rights Act in 1975 to extend its protections to “language minorities,” defined as American Indians, Asian Americans, Alaskan Natives, and persons of Spanish Heritage. Indians, as a “cognizable racial group”, were undoubtedly already covered by the...

  15. Chapter 10 Election Administration and Voting Rights
    (pp. 203-222)
    Stephen Ansolabehere

    In November 2000, Caltech and MIT formed a new venture—the Voting Technology Project. The project, which I headed from its inception through 2004, is a collaborative effort of social scientists and engineers seeking to find solutions to the failures in voting technology observed in the contested Florida election between George W. Bush and Albert Gore, Jr.

    As we began our examination of the problems in the Florida election we immediately saw that election administration is a complex system. The machines that record and count votes are integral to that system, but their operation is embedded in a larger context....

  16. Chapter 11 Options and Strategies for Renewal of Section 5 of the Voting Rights Act
    (pp. 223-241)
    Nathaniel Persily

    When originally passed, section 5 of the Voting Rights Act (VRA) (U.S.C. 42 secs. 1973b-1973c) represented an extraordinary measure for an extraordinary time. The law remains alone in American history in its intrusiveness on values of federalism and the unique and complicated procedures it requires of states and localities that want to change their laws. No other statute on the books applies only to a subset of the country and requires covered states and localities to get permission from the federal government before implementing a certain type of law. Such a remedy was necessary because case-by-case adjudication of voting rights...

  17. Chapter 12 The Coverage Curve: Identifying States at the Bottom of the Class
    (pp. 242-254)
    Spencer Overton

    Determining which jurisdictions must comply with the preclearance provisions is perhaps the most important issue in the debate about whether Congress should renew provisions of the Voting Rights Act (VRA) that expire in 2007.¹

    Other criticisms of the section 5 preclearance process—such as the assertion that it is too intrusive—seem overstated. Preclearance is much less burdensome than litigation, as it enjoys the advantages of ex ante over ex post decisionmaking (Breyer 1979). Employing a few paralegals at the federal and state levels to identify and prevent problems over a sixty-day period is much more efficient and inexpensive than...

  18. Chapter 13 Who’s Covered? Coverage Formula and Bailout
    (pp. 255-276)
    Michael P. McDonald

    The Voting Rights Act of 1965 and its extensions are credited with greater participation and more effective representation for minorities. At the same time, several sections of the Voting Rights Act (VRA) apply nationally, and others apply specifically to jurisdictions that meet criteria found in section 4 of the act. In the immediate wake of the act’s passage, section 4’s “covered jurisdictions” were forbidden to use literacy tests and other such discriminatory election devices and the federal government was empowered to send registrars and election observers into these jurisdictions to aid minority electoral participation. Although these provisions have largely ceased...

  19. Chapter 14 A Third Way Section 5 and the Opt-In Approach
    (pp. 277-310)
    Heather K. Gerken

    Section 5 of the Voting Rights Act (VRA), one of the most powerful weapons in the civil rights arsenal, is scheduled to sunset in 2007. Congress has begun to debate the fate of what may be the most creative and burdensome strategy for protecting racial minorities ever enacted, with supporters and opponents of the act gearing up for a fight.

    Even experts on the act are deeply divided as to whether Congress should renew section 5. After a long period of relative unanimity, the academics who study the act and the lawyers who enforce it are at an impasse, and...

  20. Chapter 15 Extending Section 5 of the Voting Rights Act: The Complex Interaction Between Law and Politics
    (pp. 311-339)
    Bernard Grofman and Thomas Brunell

    The renewal of section 5 of the Voting Rights Act (VRA) in 2007 will depend on both politics and the state of the law, and even more upon the peculiar interaction between the two.

    Looking at the renewal issue in 2003, when the first draft of this chapter was written, it appeared that the two most important factors affecting renewal were who was going to be elected president in 2004 and the closely related question of who would be on the Supreme Court when the VRA came time for renewal. To these questions we now know the answers. Yet the...

  21. Appendix Text of Voting Rights Act (1965)
    (pp. 340-352)
  22. General Index
    (pp. 353-364)
  23. Cases Index
    (pp. 365-368)