Post Date: September 19, 2005

The following op-ed by Professor Heather Gerken, Race (Optional), originally appeared in The New Republic on September 15, 2005.

This fall, Congress will begin debating whether to renew one of the most powerful, and controversial, civil rights laws ever passed: Section 5 of the Voting Rights Act (VRA). Section 5 requires certain state and local governments–mostly in the Deep South–to ask the federal government’s permission before making any change, no matter how small, in the way they run elections. This “preclearance” requirement has achieved spectacular results. It solved the central problem in voting rights enforcement during the civil rights era: keeping up with the increasingly creative strategies Southern states used to disenfranchise black voters. Prior to passage of the Act, discrimination was difficult to police. The moment a court deemed one exclusionary election practice illegal–literacy tests, poll taxes, citizenship tests–local officials would switch to another. Section 5 allowed the Department of Justice to stay one step ahead of local officials.

But, despite its successes, Section 5–which will sunset in 2007 unless Congress renews it–has plenty of detractors. The Department of Justice must preclear thousands of changes for covered jurisdictions every year. Southern states resent being singled out for special treatment, especially given that most recent election flare-ups have occurred in places like Ohio and the densely populated areas of Florida, which are not covered by Section 5.

Supporters and opponents of the Act are gearing up for a huge political battle. Already, The Nation has urged its readers to “keep their eyes on the prize of renewing the Voting Rights Act” for another 25 years, arguing that recent legislation in Georgia requiring voters to present photo identification demonstrates Section 5’s “continuing importance.” Meanwhile, conservative scholars Abigail Thernstrom and Edward Blum have opined on the editorial page of The Wall Street Journal that “the Bloody Sunday police violence against voting-rights activists at the Edmund Pettis [sic] Bridge was forty years ago” and says Congress should let Section 5 expire.

This simple dichotomy–the choice between maintaining the Act’s decades-old regulatory structure or allowing it to expire–is, however, a false one. There is a more dynamic approach, a middle ground that avoids the problems identified by the Act’s critics while maintaining a robust safety net for minority voters.

After years of unanimous support for Section 5, even lawyers who enforce the Act and academics who study it can’t agree on whether and how to renew it. What divides them is a single question: Do racial minorities finally wield enough power in the political process to protect themselves?

To understand the complexity of this question, look at Georgia’s redistricting process after the 2000 census. In 2001, a coalition of white and black Democrats in the state legislature passed a redistricting plan that reduced the number of “majority-minority districts”–those where racial minorities constitute a majority of voters on Election Day–in order to increase the chances that Democrats would retain legislative control. Anyone familiar with the redistricting wars of the 1990s would understand the impulse. Because African Americans and Latinos tend to vote heavily Democratic, Democrats have long worried that majority-minority districts confine them to just a few safe districts, while helping Republicans win more of the remaining seats.

Although the plan was supported by virtually every black legislator in Georgia and blessed by civil rights icon John Lewis, the Department of Justice opposed it under Section 5 on the grounds that it unduly reduced black voting strength. A federal district court agreed, and the plan was rejected. But the lower court’s decision was reversed by the Supreme Court in Georgia v. Ashcroft. The justices refused to second-guess the legislature’s judgment that the plan helped racial minorities.

Some legal experts, such as New York University law professors Rick Pildes and Sam Issacharoff, argue that the Court got it right in Georgia. Why, they ask, should we second-guess the districting plan in a case like Ashcroft, where black legislators not only favored the change but had enough votes to block it had they chosen to do so? Minority voters have made such gains under the VRA that black and Latino legislators are now at the table when deals are made. Why not let racial minorities do what any other electoral minority does in a healthy democracy: negotiate the best deal possible? Based on these arguments, some critics like Thernstrom and Blum even go so far as to argue that we are better off without Section 5.

Other experts, such as Pam Karlan of Stanford Law School, take quite a different view of what happened in Georgia: Even if black legislators struck a good deal during the redistricting process, they did so only because they could threaten a lawsuit under the VRA. If these experts are right, letting Section 5 expire will be a disaster for racial minorities, because it will take away that bargaining chip.

The problem with this debate is that it is all but impossible to resolve. We cannot determine the extent to which the threat of a VRA lawsuit has affected political bargaining. So there is no way to be sure what a world without the VRA would look like. Opponents and supporters of renewal are thus mired in an endless debate, with neither side able to prove that its empirical hunch is correct.

Rather than try to resolve this intractable argument, we should adopt a middle ground approach: an opt-in strategy that allows community and legislative leaders to negotiate the best deal possible for racial minorities but places a bargaining chip in their pockets–a chance to demand that the Act’s traditional constraints apply when bargaining breaks down. Political deals struck by racial minorities would be enforced, but the VRA would hang like the sword of Damocles over every negotiation.

What would an opt-in approach look like in practice? Rather than “preclearing” the thousands of electoral changes localities make each year with the Department of Justice, jurisdictions covered by Section 5 would merely provide advance notice of these changes to the public. Civil rights groups would then have a chance to negotiate with local officials over any change they found objectionable. If the bargaining process was fair, a court or the Justice Department would let the decision stand. If negotiations broke down, however, the sword would fall: Civil rights groups would have the right to “opt in” to VRA enforcement by filing a formal civil rights complaint. This would put into play the full range of remedies currently available under the statute.

Would an opt-in strategy work? Similar efforts at “responsive regulation” have succeeded in areas like environmental law and consumer safety. In each case, a combination of better public information and the right set of incentives has generated a more dynamic regulatory system than the top-down approach of the past.

Under an opt-in approach, local public interest and civil rights groups–not distant bureaucrats in Washington–would decide which changes are worth investigating. Civil rights groups are already doing this sort of legwork. The Department of Justice receives so many preclearance requests that it cannot possibly sort through them all without help. Its “investigation” thus usually involves a call by a Justice staffer to a civil rights group or an elected minority official to see if there is a problem. An opt-in approach actually gives civil rights groups two bites at the apple: a chance to change the minds of local officials as well as to persuade Justice to take their side.

The opt-in approach also provides the right kind of incentives for those monitoring elections. Localities, of course, have every reason to work with civil rights groups to avoid the initiation of formal proceedings against them. In the long run, those incentives increase. Localities known for running fair complaint resolution processes would receive more deference from Justice when the Department is asked to intercede, and Justice would look askance at any locality that consistently ignored sensible alternatives proposed by civil rights groups.

Civil rights groups will also be guided by the right incentives. Rather than challenging every change localities propose–thus needlessly reproducing the current system–civil rights groups will want to present Justice with needles, not haystacks. Flooding the system with weak claims would mean that a group’s complaints are likely to be ignored in the future. Additionally, an opt-in approach lets Justice conserve its enforcement resources. Rather than investigating thousands of requests, it can focus on problems serious enough to concern community leaders and divisive enough to prevent negotiations from working.

Finally, there is much to be said for waging election-law wars over process rather than substance. Take redistricting. Courts must develop a set of proxies for gauging fairness. We have already seen what such proxies look like when courts police districting outcomes–the almost routine imposition of majority-minority districts upon localities, precisely the type of command-and-control regulation that the VRA’s critics have decried. Were courts to develop instead a set of proxies for a fair process, political elites would finally have a reason to engage with the communities affected by their decisions. Why? Just think about how one would figure out whether a process was “fair.” Most of us would come up with a proxy that has already been deployed by the Supreme Court and the Justice Department: the support of legislators who represent racial minorities. In the Georgia case, for instance, it obviously mattered a great deal to the Court that there was relative unanimity among African American representatives about the wisdom of the plan. That kind of proxy would encourage the development of cross-racial coalitions and buttress the negotiating power of minority officials.

Representatives of minority communities won’t always be the best proxies for fairness. Some will negotiate from a position of weakness; others will be too self-interested to be trusted. In those instances, we can take a chapter from corporate law. When directors engage in a self-interested transaction, courts grant that transaction extremely deferential review if it is approved by a majority of disinterested shareholders. Courts or the Justice Department might therefore rely on the views of community leaders, civil rights groups, or good governance watchdogs. And politicians would want to show that their preferred plans enjoy the support of black and Latino voters. Were courts and the Justice Department to use the “blessings” of such groups as proxies for gauging a plan’s fairness, political elites would have every incentive to obtain these groups’ approval.

As Congress begins hearings on the Voting Rights Act, it should consider a solution that neither abandons the all-important project of voting rights enforcement nor simply maintains the status quo. Instead, we need an adaptive regulatory strategy that creates space for us to move forward in this highly fraught area where race and politics intersect. The opt-in approach is that strategy. It creates the right sort of incentives for everyone in the system. And it might even create new channels for genuine community involvement in structuring our democracy. After all, guaranteeing such direct minority participation is, ultimately, what the VRA should be all about.

Heather Gerken, an election law expert, is a professor at Harvard Law School.