More on VRA Renewal

Here is the identical Senate version of the VRA legislation. It is valuable for listing the Senate co-sponsors of the bill. Here is a letter from the Leadership Conference on Civil Rights endorsing the draft legislation. Here is Rick Pildes's forthcoming article in the Howard Law Journal symposium on voting rights, The Future of Voting Rights Policy: From Anti-Discrimination to the Right to Vote. (My next order of business is reading this piece.) Responding to my earlier post, Mike Pitts writes:

I completely agree with Rick that it would be wise for the Senate to slow things down when it comes to extending Section 5 of the Voting Rights Act, particularly when dealing with the reversal of Georgia v. Ashcroft. I, too, have recommended that Congress consider changes to the coverage formula, the bailout mechanism, and the length of the extension in an article available here: http://law.unl.edu/Forms/pitts_denver_final.pdf. And I have also
written extensively about the benefits of Georgia v. Ashcroft as it relates to the constitutionality of Section 5 in an article available here: http://law.unl.edu/Forms/pitts_pepperdine_final.pdf.

I would, however, urge some caution with regard to Rick's parting thought that Morris v. Gressette should be reversed. First off, I don't think partisan enforcement of Section 5 is a huge problem and I've written about
this in a recent article available at: http://law.unl.edu/Forms/NEB205.pdf. Second, if Morris were reversed, wouldn't that be an additional strike against the constitutionality of Section 5 for those who are concerned about
the intrusiveness of the provision on the prerogatives of state and local governments? In other words, doesn't allowing a second, collateral challenge create the perception or reality of an increased federalism burden?

Obviously, Rick could argue that because Section 5 does serve as a bar to other types of collateral lawsuits, such as challenges under Section 2, the increased federalism cost of allowing collateral challenges to
administrative determinations under Section 5 is minimal. He might also argue that if the other changes we both have suggested were made (to the coverage formula, bailout, etc.), then the increase on the burden of state
and local governments that comes from reversing Morris would be far outweighed by the decrease on the burden that resulted from these other changes. Finally, Rick might have in mind a very narrow exception for reversing Morris (i.e., only reverse Morris as it relates to statewide redistricting). (He'd probably also have several additional clever counter-arguments.)

All this is not to say that Rick is completely off-base in his sentiments about reversing Morris. It's just to say that we'd want to think carefully about the implications of reversing Morris as they relate to the constitutionality of Section 5.

I agree with Mike that we'd need to think carefully about reversing Morris (and I appreciate that he's made the counterarguments for me). But I suppose I simply disagree with his premise that partisan enforcement is not a huge problem. The recent exposes of the Washington Post on the Georgia and Texas preclearance process make that clear to me.

More to come.

Posted by Rick Hasen at May 3, 2006 01:36 PM