Judicial Review of the Voting Rights Act (2006): The Court Should Bail-Out

Abstract

In 1965 Congress passed the Voting Rights Act (VRA), arguably the crown jewel of civil rights legislation; it was a dramatic effort to uproot processes denying African-Americans Fifteenth Amendment protections. In an exceptional expression of federal power, the VRA granted the national government a direct role in overseeing state and local elections. This oversight led to an immediate increase in African American voter participation. It also structured a long-term conflict over the authority to control electoral processes. Central in this conflict is the singling-out of some jurisdictions for section 5 “preclearance.” These “covered” jurisdictions, targeted by an automatic formula, require approval from the Department of Justice (DOJ) or the District Court in D.C. before implementing any changes to their electoral systems. Originally established as a temporary measure, set to expire in 1970, section 5 has been renewed (and even expanded) by Congress four times — most recently in 2006 for an additional twenty-five years. This oversight of elections is seen by many as a federal intrusion on state authority that can only be justified by extreme circumstances. For most of the Act’s history bailout was little used. With its lack of use, its importance has been overlooked. In Northwest Austin Municipal Utility District No. 1 (NAMUDNO) v. Holder (2009) — the most recent Supreme Court challenge to the constitutionality of the VRA — the Court dodged the constitutional question by expanding the types of jurisdictions eligible for bailout. The pace of jurisdictions terminating coverage has significantly increased since NAMUDNO. Of the total successful bailout actions since 1965, 30 percent occurred in the three years after the Supreme Court’s 2009 decision. The largest number of jurisdictions bailing-out in one year occurred in the twelve month period from the end of 2011 to the beginning of 2012, and the total number of bailed-out jurisdictions is set to nearly double again in the second half of 2012. Because of bailout the number of jurisdictions subject to preclearance is rapidly shifting. Bailout permitted the Court to avoid constitutional questions in NAMUDNO, but bailout enables more; it provides a constitutional basis for the Court to uphold preclearance. Given its amplified use, constitutional evaluations of the VRA would be greatly augmented by assessing bailout. This paper argues the Court should uphold section 5 of the VRA because of the existence, and increased use, of the bailout process. In order to make this argument this paper will: (1) review contemporary debates regarding the constitutionality of preclearance; (2) explore the history of the VRA; (3) examine empirical evidence justifying preclearance; (4) explain Congress’s power to regulate elections; and (5) examine legal doctrines related to preclearance. The importance of the bailout process will be explored in each section to illustrate preclearance as a constitutionally justified use of congressional power.