The Supreme Court dealt the Voting Rights Act a serious body blow Tuesday, but it did leave Congress an out. The court said, “Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.”
That raises a question: should Congress update the Voting Rights Act in light of today’s ruling, as President Obama has already called for it to do? If so, how? And if not, what sort of system should take its place? [...]
Patching the act
The most obvious way to reverse the effects of the court’s decision would be to change Section 4. Spencer Overton at George Washington University Law School has outlined a plan to do just that. “Congress should update the coverage formula to require that states and localities with recent voting rights violations preclear new election law changes,” he writes. “In addition, states and localities that violate voting rights in the future should be required to preclear their election law changes.”
One way to base preclearance on findings of specific violations, as Overton proposes, is to expand Section 3. Rick Pildes, a voting law expert at NYU Law School, explains, “One could imagine variations of that kind of structure, where coverage is tied to specific findings of violations in particular places over recent periods of time. You could modify, or work to expand, Section 3.”
Another option, which would be unquestionably constitutional, would be to just subject everywhere to preclearance. If there’s no formula for determining who’s covered, then the formula can’t be unconstitutional. “I guess that’s doable, but the question is how much bang for the buck are you getting as opposed to alternatives,” says Pildes. “I doubt if we were starting on a blank slate we’d be thinking in terms of a process like preclearance.”
