Online VRA symposium: When should the best be the enemy of the possible?

The following contribution to our VRA symposium comes from Nathaniel Persily, Charles Keller Beekman Professor of Law and Professor of Political Science at Columbia Law School.

When the Supreme Court upheld the Affordable Care Act, my first, quite parochial, reaction was: There goes the Voting Rights Act. Prior to that decision, the political scientist in me had thought that Citizens United was the best thing that could have happened to the VRA (specifically Section 5). The blowback from that controversial campaign finance case (heightened by the decisions related political drama in the Presidents accusations of judicial overreach in his State of the Union Address) might lead the Court to continue the incrementalist approach to the VRA it pursued in the Northwest Austin case. The VRA would die a death of a thousand as-applied cuts, instead of one swift blow to the face. With the Courts reservoir of political capital replenished and the variety of challenges to Section 5 coming from all corners of the country, however, now I am not so sure.

Of course, given the Courts unanimous declaration in Northwest Austin that the reauthorized Section 5 coverage formula perhaps constituted an irrational exercise of congressional power, the alarm had already been sounded. It is difficult to view that case, which allowed for a Texas utility district to bail out from Section 5 coverage, as anything but a can-kicking exercise. It allowed the VRAs defenders on the Court, who signed on to quite severe language in the opinion, to delay Section 5s day of reckoning and hope, against all odds, that Congress might save the Courts bacon. For Justices skeptical of the VRA, the case follows the playbook of the recent campaign finance cases. Just as the Wisconsin Right to Life case claimed judicial restraint by vindicating an as-applied challenge to the McCain-Feingold campaign finance law, but paved the way for Citizens United, so might dipping the Courts toe in the shallow end with Northwest Austin lead to a more aggressive plunge with consolidated VRA cases arising from the many Section 5-related decisions issued in 2012.

The foregoing is not intended as a cynical appraisal of how the Court conducts its business. How and when to decide these difficult constitutional issues can be as important as their bottom line resolution. This is all the more true for a case that is directly about politics and racial politics, no less concerning a statute long considered the gold standard for exercises of congressional power to enforce civil rights. And as the Court begins its Term a month before a presidential election already mired in controversies surrounding voter identification, early voting, and redistricting, the media frame (fair or not) for the Courts consideration of the VRA is already easy to predict.

The upcoming election shapes the political context for the Courts involvement on several levels. Most notably, if the first African-American president is reelected, VRA opponents will argue implicitly or explicitly that circumstances have changed over the life cycle of the VRA for Section 5 to be put to rest. For those who focus on rates of racially polarized voting as a way of distinguishing the covered from the noncovered jurisdictions, moreover, the 2012 reelection provides one more set of data points to assess the gap, if any, in performance between the African-American candidate of choice (to use VRA lingo) and similarly situated white candidates. (Of course, neither Obamas candidacy nor presidential elections, in general, should be seen as terribly predictive of candidate performance or voter behavior for the average election, such as for city council. And as Rick Pildes notes in his post, the geographic congruence of racial polarization and Section 5 coverage will certainly not be perfect, so even by that arguably irrelevant metric advocates would need to return to the larger questions as to how close the fit with Section 5 coverage needs to be.)

The voting rights controversies surrounding the 2012 election provide additional context. VRA supporters can point to judicial findings of intentional discrimination in the Texas redistricting case, for example, as evidence of Section 5s continued utility. The same could be said of the D.C. courts preclearance denial for the Texas voter ID law and Floridas restrictions on early voting, and of DOJs preclearance denial of South Carolinas voter ID law, currently awaiting court affirmation.

Opponents of the VRA see these court cases, on the other hand, as demonstrating the unconstitutionality and irrationality of Section 5s coverage formula. Why should a voter ID law be illegal in Texas and South Carolina, they ask, but not in Pennsylvania? Why should early voting restrictions in Florida be subject to a scheme of federal permission-giving but not Ohio? (In the end, it seems the Ohio restrictions on early voting will also be enjoined by a federal judge, as was the Wisconsin photo ID law by that states courts, but you see the point.) Even if one were to concede that most such laws were motivated by a discriminatory purpose or otherwise worsen the electoral position of racial minorities, then the geographic pattern and practice of discrimination is not limited to the states covered by Section 5 of the VRA. Of course, the same could be said for the coverage formula when it was originally enacted and subsequently reauthorized. The fit has never been perfect, and no objective metric, such as minority turnout or officeholding or even reported court cases, has ever distinguished all the jurisdictions in need of greater oversight.

The present controversies further crystallize the positions that animated the constitutional debate in the lead-up to and aftermath of the 2006 reauthorization. For defenders of the VRA, the constitutional question has always been: Is there sufficient evidence of continuing or threatened voting discrimination in the covered jurisdictions so as to justify their coverage? Opponents ask, in contrast, whether relative rates of discrimination in voting justify differential treatment of the covered and non-covered jurisdiction.

The VRAs defenders were and are inevitably placed in a difficult position because they must prove both the VRAs success and its continued need in unchanged form. If the regional differences between the covered and uncovered areas remained as stark as they were in 1965, then the VRA has been completely ineffective. If those regional differences have been erased, however, either the VRA is working as intended or it has outlived its usefulness. (In the Northwest Austin oral argument, Chief Justice Roberts referred to this as the Elephant Whistle problem.) Moreover, if Congress had tailored a new coverage formula to deal with the worst offenders circa 2006, the evidence in the record would have been tainted by the fact that only the covered jurisdictions had been prevented by Section 5 from enacting certain types of voting laws.

Because the Court had previously upheld the very same coverage regime (including the bailout provision I will discuss in a subsequent post) and because adding any new states would generate considerable political opposition, the VRAs supporters charted the path most likely to guarantee the bills passage. (Mind you, as suggested by post-enactment legislative history, there was considerable resistance not evident from the bills lopsided margin of victory on the floor.) As with any bipartisan legislation, the final vote tally represented a confluence of individual legislator motivations: authentic and apathetic supporters, those afraid of being called racist, partisan calculators, and opponents who nevertheless signed on but were hopeful the Court would strike the law down.

Given the party polarization that has only worsened in the last six years, though, the reauthorization of the VRA appears as the last survivor of a near-extinct species. A bipartisan coalition supported a piece of election-related legislation that is, a law that could affect representatives own jobs and their parties fortunes. To be sure, there were reasons to think the partisan stakes were contingent or hard to predict. But when placed in the context of the stalemate that has plagued our recent politics, the reauthorization stands out like a legislative unicorn.

More to the point, if the Court strikes down Section 5 this year, it is difficult to see the parties coming together to replace it with anything of substance in the foreseeable future. As difficult as it may have been in 2006 to conduct an updated national conversation about voting rights and election reform, imagine how hard it would be to do so in 2013 following an election campaign marred by near-daily accusations of racism and partisan manipulation. The facts on the ground have changed since 1965 and even since 2006, but todays political system is simply not up to the task of confronting the difficult challenges presented by an honest assessment of the current state of minority voting rights.