“The historic accomplishments of the Voting Rights Act are undeniable,” wrote Chief Justice Roberts the last time the Supreme Court took up a challenge to the historic legislation, in the 2009 case of Northwest Austin Municipal Utility District No. One v. Holder (“NAMUDNO”). Nobody can dispute this characterization of the legislation, not with the dramatic political strides racial and ethnic minorities have made since Jim Crow necessitated federal intervention in an area traditionally left to the states, election administration.
The law’s modern application, however, is problematic to say the least. Sections 2 and 5 conflict with each other, with the Fourteenth and Fifteenth Amendments, and with the orderly implementation of fair elections. The law, most recently renewed in 2006 for another twenty-five years, is based on deeply flawed assumptions and outdated statistical triggers, and flies in the face of the Fifteenth Amendment’s requirement that all voters be treated equally.
That is, Section 5 was a valuable tool in the fight against systemic disenfranchisement, but it now facilitates the very discrimination it was designed to prevent. For example, the prohibition on “retrogression” effectively requires districting that assures that minority voters are the majority in some districts — an inherently race-conscious mandate.
Jurisdictions covered by Section 5 are thus subject to utterly predictable litigation, the outcome of which is often dependent on judges’ views of how to satisfy both the VRA’s race-conscious mandates and the Fifteenth Amendment’s command to treat people of all races equally under law. When added to legislators’ partisan interests, this navigation between the VRA’s Scylla and the Constitution’s Charybdis inevitably crashes the electoral vessel onto judicial shoals.
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