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Even as Congressional efforts to recast the Voting Rights Act stall, two leading experts are proposing a different approach that could breathe new life into the Act after the Shelby County case.
Earlier this year, NYU law professor Samuel Issacharoff released a paper entitled Beyond the Discrimination Model on Voting. In it, he looks at future of the Voting Rights Act following the Supreme Court’s decision in Shelby County v. Holder. He identifies key challenges for voting rights advocates in a post-Shelby world; namely, the increasing unwillingness of courts to use a civil rights lens to examine voting problems and the problems involved with what he calls “geographically bound domain based centrally on electoral activity in 1964.” (p.27) In his opinion, the better approach is to harness federal power under the Elections Clause of the Constitution and empower the courts and litigants to identify potential voting rights problems in a different way:
[T]he easiest place to start is by compelling states to disclose alterations of voting rules or practices, as they will affect the conduct of federal elections … Congress can command that for all federal elections there be a reporting of all changes made to election practice within a fixed period of any federal election to a federal agency… Such disclosure would have to identify the changed practice and the reason for the change.
The disclosure could further require a “voting impact statement,” borrowed from the environmental impact requirements under the National Environmental Policy Act. The impact statement need not be elaborate, only a statement of the likely anticipated effect on access to the ballot and any known anticipated impact on minority voters in particular. To this could be added an important regulatory innovation: the requirement that a responsible official sign under oath that the submitted information is true. Finally, the receiving federal agency would be charged with immediate internet posting of the relevant submissions.
The disclosure would then set the template for either DOJ challenge or private party challenge, with the disclosure serving as the prima facie evidentiary basis. This result both facilitates prosecution and review, and forces transparency and accountability on administrative conduct prompted by partisan or other malevolent objectives.
The changes from Section 5 are significant. First, the new approach would not be geographically confined and would not be limited to specified practices, or even to a narrow retrogression standard. As such, new congressional enactments could be directed to the broader issues presented in recent cases, such as the Ohio presidential ballot litigation. Second, the burden would be limited to the electronic transmission of information by election administrators who would be required only to submit a short account of what they are actually doing. There would be no preclearance in the Section 5 sense; all changes could be implemented immediately subject to subsequent challenge and potential court injunction. Finally, the combined effect would be to lessen the litigation burden on those challenging suspected official misconduct. The critical work of spotting changes would be greatly simplified and the burdensome discovery task of establishing the state justification for conduct would be eliminated. Forcing disclosure would thereby facilitate statutory or constitutional challenges to state actions on the grounds that the stated official reasons for voting restrictions were pretextual or that there was insufficient correspondence between the stated aims and the means selected — either of which could be effectively scrutinized even under a rational relations standard of review. (pp. 27-29, citations omitted)
More recently, GW law professor Spencer Overton weighed in on the ideas with his own paper, Voting Rights Disclosure. While he disagrees with Issacharoff about the need to move past race-based enforcement via the Fifteenth Amendment – and thus would support some restoration of preclearance as part of a renewed Voting Rights Act – he does endorse the concept of disclosure, albeit in a broader sense:
Instead of limiting disclosure to federal elections, I would expand disclosure to include federal, state, and local elections. I would also require more detailed demographic information in areas with significant minority populations and racially polarized voting, particularly for redistricting, annexations, and other changes that may dilute minority voting strength without impeding voter access …
Issacharoff’s disclosure proposal misses manipulation of local election rules for offices such as sheriff, county commissioner, city council, or school board member. These offices are often nonpartisan and escape national attention, but they make important decisions related to schools, criminal justice, health and family services, and economic opportunity that directly affect our daily lives.
Granted, most states have elections for state and federal offices at the same time, and thus Issacharoff’s federal disclosure proposal would cover many voting changes that simultaneously apply to federal, state, and local elections (for example, voter identification, early vote roll-back, and registration rules). Issacharoff’s rule, however, would not disclose the bulk of unfair local and state activity. At least 86.4% of all election changes that resulted in section 5 objections since 2000 would not have been disclosed under Issacharoff’s proposal. (pp. 24-25, citations omitted)
Overton would also expand the impact statement to allow for identification of “racial manipulation of other voting rules implemented to dilute minority voting strength.” (p. 26)
Despite these differences, however, the general agreement on the need for better data and disclosure is an important one for the field. It will be interesting to see if these ideas gain any momentum going forward.