Against a "Post-Racial" Voting Rights Act

August 21, 2013 | | The American Prospect |

In June, five Supreme Court Justices rolled back the Voting Rights Act, widely considered the most effective tool in preventing discrimination in our nation's history. Section 5 of the act required that certain states and localities "preclear" proposed election changes with federal officials to ensure the changes were not discriminatory.  The Court ruled that the formula used to determine which jurisdictions needed to get preclearance was outdated and unconstitutional. For those of us who care about voting rights, the question now is how do we respond?

Some have argued that Congress should update the Voting Rights Act by passing ambitious election reforms. Such proposals include mandating shorter voting lines, making registration more convenient, and passing less restrictive identification requirements. For example, Sam Issacharoff and Richard Pildes—both New York University law professors who advised the Obama campaign—argue that we should look beyond the race-discrimination approach and adopt general election reforms that are race-neutral. 

The effort to update the Voting Rights Act, however, should focus on preventing voting discrimination—not general election reforms. Promoting broader access is a critical democratic goal, but it is distinct from the goal of preventing voting discrimination. By analogy, a tax deduction for mortgage interest promotes access to home ownership, but separate laws are still needed to prevent banks from engaging in predatory lending—different problems require different solutions. Voting discrimination is real, and broad election reform is not sufficient to address it. 

The argument for general election reform is that today’s primary problems are long lines and other barriers that affect all Americans rather than discrimination against minorities. Granted, we have made significant progress when it comes to minority rights. Bull Connor no longer beats down demonstrators. Black voter turnout sometimes exceeds white turnout, and our nation has elected an African-American president. But voting discrimination persists. In many parts of the country, political operatives continue to maintain power by manipulating election rules to diminish minority votes. Redistricting, changing election dates, eliminating bilingual voting materials, and erecting barriers that make voting harder are just a few examples.