Political Contestation, the Separation of Powers, and the Subterranean Retrenchment of the Voting Rights Act

Abstract

This article explains the gradual erosion of the Voting Rights Act through an examination of the subterranean political battles that took place within the Justice Department, the courts, Congress, and the States between 1965 and 2013. Its central goal is to reveal like never before the hidden politics of voting policy "retrenchment."Retrenchment refers to the efforts of opponents to reverse, blunt, or erode a policy commitment. Though scholars have come to view retrenchment as a distinctive political process, our understanding of this concept is still in its infancy. This article stretches our knowledge of retrenchment in three distinct ways. First, unlike prior research — which has focused nearly exclusively on conservative opposition to the distribution of benefits under programs stemming from the American welfare state — it ventures into an unexplored realm: that of civil rights generally, and the Voting Rights Act in particular. Second, this article's examination of retrenchment efforts in each political arena is far more granular than previous studies. For instance, it drills down to the legal doctrine at issue, and explains how the policy commitments encapsulated in that doctrine were progressively weakened over forty years. Third, this article is far more rigorous in its investigation of how the political dynamics of one arena can mediate retrenchment efforts in others. Specifically, it employs an original dataset consisting of every case litigated by the Civil Rights Division’s Voting Section to show how Congress, the president, and regulated parties impact retrenchment at the Department of Justice.This article teaches that retrenchment must be understood as a multi-faceted phenomenon that occurs throughout the government ecosystem. It also instructs that the nature and form of the policy at stake are crucial to determining where retrenchment will predominate. Finally, it suggests our definition of "retrenchment" — and the typology of methods for accomplishing it — must expand beyond current boundaries.