In Shelby County v. Holder, the opponents of Section 5 of the Voting Rights Actargue that this provision acts as a bludgeon that crushes the ability of the covered jurisdictions to legislate freely concerning the electoral process. The premise of this argument is that the America – and especially the jurisdictions covered by Section 5 – has triumphed over the problem of race. The voter suppression that existed in 1965 no longer exists. An America that can elect an African-American president no longer needs to micromanage the election processes of certain states and localities on the basis of race. The opponents’ claim is that we live in a post-racial world, and a Congress that fails to recognize this has overstepped its constitutional role.
These two premises – that race is a relic of the past and that Congress has overreached its power to manage the electoral process – are false.
Yet it is appealing to believe that we as a country have triumphed over the problem of race. This narrative tempts all of us, liberals and conservatives, to move on to other problems and feel good about ourselves. For the political right, if race is no longer a problem, then the ridicule conservatives suffer because they are typecast as being “bad on race” is no longer valid. For the political left, the triumph over race represents the realization of the liberal vision of racial harmony. The end effect is that once we believe this view, we avoid race discussions and eschew race-conscious remedies despite the facts.
Some commentators opposing Section 5 (see also here) and the justices most vocal about its abolition share this post-racial view. Taken with the other blockbuster case of the term, Fisher v. University of Texas, on the constitutionality of race-based affirmative action, it is foreseeable that the Court will take the opportunity to tell this post-racial narrative: Regulating the democratic process to protect against minorities is no longer necessary because, as the Court said in NAMUNDO v. Holder, “Things have changed in the South.” Moreover, race-conscious considerations in admissions are not only unnecessary, but repugnant to the moral philosophy of the Constitution. Read together, the message is that we are past race.
But the evidence suggests that our struggles concerning race and voting are far from over. In reauthorizing Section 5, Congress pointed to substantial evidence that racial disparities in voting continue to exist. The D.C. district court upheld Section 5 on the basis that the record before Congress showed evidence sufficient proof that Section 5 continues to be needed, and the D.C. Circuit upheld that finding. Moreover, in the 2012 elections, Section 5 was the vehicle the courts used to identify and mitigate the potentially racially disparate effects that voter identification laws would have in South Carolina and Texas.
Moreover, I would argue that Congress has broad power under the Fifteenth Amendment to legislate how the democratic process should be regulated when it comes to race. And, as seven other election law scholars and I argued in an amicus brief before the Court, the Elections Clause provides Congress broad power to legislate concerning federal elections. These two provisions should be read together to grant Congress broad discretion in structuring remedial and prospective schemes to moderate the effects of state regulations that would have a disparate impact upon minorities. On this reasoning, Section 5 should be upheld.
But this leaves open the question of how Section 5 coverage should be applied in the 21st century. There is room for a new approach to the coverage provisions that is both responsive to 21st century realities while it retains the key features of Section 5: (1) federal governmental oversight of the electoral process to prevent disparate impact on the basis of race, and (2) the requirement that states have the burden to prove that their election changes do not diminish the voting rights of minorities. There is room for legislative innovation in this field (see here, here, and here for proposals of various sorts) and Congress has the authority and responsibility to modernize the law.
To deny Congress the power to legislate to maintain fairness and access for racial minorities in elections would be a mistake. To do this on the basis of a post-racial narrative that imposes our wish for elections not tainted by race without addressing the reality of racial balkanization would be irresponsible. The Court – and we as Americans – should avoid this post-racialism trap and allow for continued innovation in the Voting Rights Act to address the needs of our democracy in the 21st century.