A Third Way for the Voting Rights Act: Section 5 and the Opt-In Approach

Abstract

One of the most powerful and intrusive civil rights provisions ever passed-section 5 of the Voting Rights

A Strategic Dominance Argument for Retaining Section 5 of the VRA

“…Congress could choose to reverse this case by amending the VRA to provide for reviewability.16 AsPildes (2002Pildes ( , 1558 comments, "As long as the Republican Party can find willing plaintiffs who have standing, Section 5 can be deployed as a vehicle for partisan political interests." 17 This mechanism is similar to the "third way" approach suggested byGerken (2006).…”

Has the Voting Rights Act Outlived Its Usefulness? In a Word, “No”

“…Other scholars have argued that the creation of majority-black districts has had little influence on electoral or policy outcomes, or even promoted the adoption of policies favored by African American constituents (Canon 1999;Grofman 2006;Grofman and Handley 1995, N.d.;McClain 1994;Petrocik and Desposato 1998;Shotts 2003). Legal scholars have questioned if Section 5, renewed and largely unchanged except for efforts by Congress to strengthen it by overturning Georgia v. Ashcroft and another Supreme Court decision (described later), remains necessary or will survive constitutional scrutiny by the U.S. Supreme Court (Gerken 2006;Issacharoff 2004;Pildes 2007b;. Some analysts have suggested, however, that Congress took the only politically viable approach and that the Court should uphold the renewed Section 5 (Canon 2008;Persily 2007).…”

Race, Representation, and the Voting Rights Act

“…The Act prohibited jurisdictions from implementing barriers to voting and provided for greater enforcement of the right to vote guaranteed by the Fourteenth and Fifteenth Amendments. Upon reflection, President Johnson remarked that the VRA was his greatest achievement from an era that produced “one of the most glittering records of legislative accomplishment in history.” The VRA earns a place on David Mayhew's list of “significant” legislation and has also been described as “the most powerful weapon in the civil rights arsenal” (Gerken , 709), which “had fundamental effects on American politics and society” (Rodriguez and Weingast , 1428). As Cox and Miles (, 1) elaborate, “the Voting Rights Act has dramatically reshaped the political landscape of the United States … it has helped substantially expand political opportunities for minority voters and has contributed to the radical realignment of Southern politics.” And in even more lucid terms, Issacharoff (, 95) writes that the VRA “was pivotal in bringing black Americans to the broad currents of political life—a transformation that shook the foundations of Jim Crow, triggered the realignment of partisan politics, and set the foundations for the election of an African American president.” A voluminous empirical literature attributes the VRA with increased rates of Black voter turnout (Filer, Kenney, and Morton ); successful Black candidates elected to municipal office (Sass and Mehay ), state legislatures (Grofman and Handley ), and Congress (Handley, Grofman, and Arden ); and public expenditures in Black communities (Cascio and Washington ; Husted and Kenny ; Keech ).…”