Five Supreme Court Justices just rolled back the most effective civil rights provision in our nation's history. What should we do now?
One option is to declare "mission accomplished" and forget about race in politics.
That, however, will not work. Although we have made amazing progress in the past fifty years, too many state and local politicians still maintain power by manipulating election rules.
Nueces County, Texas, provides one example. After the rapidly growing Latino community surpassed 56 percent of its population, the county gerrymandered local election districts to diminish the influence of Latino voters. The Voting Rights Act blocked Nueces County's gerrymandering in 2012, but now that the Court has rolled back the Act, state and local politicians will have more opportunities to manipulate voting rules.
Voting rights protections are still needed, and it is feasible to design up-to-date and adequate protections. While today's Supreme Court decision is a setback, Congress has the power to do the right thing and update the Voting Rights Act.
Republicans and Democrats should agree to modernize the Voting Rights Act based on two principles: (1) updating the Act's preclearance and litigation provisions; and (2) requiring disclosure.
Update Preclearance & Litigation
The preclearance process of the Voting Rights Act applied to all or part of 15 states, and required those areas to submit proposed changes in voting rules to federal officials for approval. The Supreme Court held that the coverage formula requiring preclearance by some states but not others was outdated because it was based on election data from the 1964, 1968, and 1972 elections.
Congress should update the coverage formula to require that states and localities with recent voting rights violations preclear new election law changes. In addition, states and localities that violate voting rights in the future should be required to preclear their election law changes.
Congress should also update the voting rights litigation process. The law needs to stop unfair election rules before they are used and harm voters. For example, the updated Act should bolster the process for obtaining a court order to stop unfair rules from being used in an election. States and localities generally have more information about their proposed election law changes, and the updated Act should shift more responsibility to states and localities to show that a change is fair. Further, litigation standards designed for redistricting cases should be updated to more effectively address other problems -- such as hurdles to casting a ballot.
Congress should also update the Voting Rights Act to require that states and localities with significant minority populations disclose election law changes via an online portal that is open to review by the public. States and localities should disclose the reasons for the changes, their anticipated effect on minority voters, and demographic data about the area.
Like the preclearance requirement, the disclosure rules should be comprehensive. The effects of all new election rules would be public, and this transparency would deter many unfair rules. Disclosure would increase states' compliance with the Act and thereby reduce the amount and cost of litigation. Increased transparency would help federal officials and voting rights groups detect trends, devise non-litigation solutions where appropriate, and concentrate finite litigation resources on the most significant problems. While disclosure does not solve all problems, it can add value, as it does with securities trading, mergers that may trigger antitrust concerns, environmental impact statements, and campaign finance disclosure.
An updated Voting Rights Act will help not just voters of color, but our nation as a whole. Removing voting barriers and deterring politicians from manipulating election rules improves democracy for all Americans. Protecting voting rights also provides legitimacy to our nation's efforts to promote democracy and prevent corruption around the world.
This is a critical moment. Public attention on the Supreme Court's decision presents an opportunity to update the Voting Rights Act in Congress. But eventually public interest will fade, and the chance to update the Act will be lost. Congress must start the process now.
Spencer Overton is a Professor of Law at The George Washington University Law School and a Senior Fellow at Demos. He is the author of the book Stealing Democracy: The New Politics of Voter Suppression. Follow him on Twitter @SpencerOverton.
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