The Promise and Pitfalls of the New Voting Rights Act

Abstract

In the summer of 2006, Congress reauthorized the expiring provisions of the Voting Rights Act (VRA) with a unanimous vote in the Senate and with limited opposition in the House of Representatives. The veneer of bipartisanship that outsiders perceived in the final vote glossed over serious disagreements between the parties over the meaning of the central provision of the new VRA, which prohibits voting laws that “diminish the ability” of minority citizens “to elect their preferred candidates of choice.” Those disagreements came to the surface in a fractured Senate Committee Report released only after Congress had passed the law. This Article describes the unprecedented legislative history of this law, and the political and constitutional constraints that led the law to take the form that it did. It also presents an interpretation of the new retrogression standard that avoids the partisan bias of alternatives while emphasizing the importance of racially polarized voting to the constitutionality and meaning of this new law. It urges that the new law be read as preventing redistricting plans that reduce the aggregated probability across districts of the election of candidates preferred by the minority community and disfavored by whites. author. Professor of Law and Political Science, Columbia Law School; Sidley Austin Visiting Professor of Law, Harvard Law School. I am indebted to Erica Lai for research assistance and to librarian Bill Draper for an enormous amount of help collecting materials related to the legislative history of the new VRA. I also received very helpful comments from Robert Bauer, Richard Briffault, Michael Carvin, Adam Cox, Kareem Crayton, Einer Elhague, David Epstein, Elizabeth Garrett, Heather Gerken, Bernard Grofman, Richard Hasen, Sam Hirsch, Samuel Issacharoff, Ellen Katz, J. Morgan Kousser, Luke McLoughlin, Richard Pildes, Mark Posner, Abigail Thernstrom, James Tucker, Richard Valelly, Kahlil Williams, and participants in faculty workshops at Columbia, Harvard, Northwestern, and University of Southern California law schools. Thank you also to The Yale Law Journal editors—Monica Bell, John J. Hughes III, Jonathan Manes, and Dara E. Purvis—who shepherded this Article to publication with great skill. the promise and pitfalls of the new voting rights act 175 article contents