Friday, June 28, 2013

An idea to save the Voting Rights Act

The Supreme Court has invalidated Section 4 of the Voting Rights Act. That provision sets forth a formula for determining what jurisdictions must get "preclearance" from the Department of Justice to change voting practices (even trivial things such as the location of a polling place).

Technically the Court just said that the Congressional formula is no longer "appropriate legislation" given the changes that have occurred since the Voting Rights Act was passed in 1964. So Congress could theoretically fix the provision by coming up with an up-to-date formula. But many think that's likely to be impossible given the political realities in Congress. The main reason they kept approving the old formula was that it was political poison to get into the weeds of renegotiating the formula. So the provision is fixable in theory but dead in fact.

But what if Congress just passed a law that delegated the responsibility to come up with a good formula to some federal agency? They could even say the formula has to be revisited and revised every year, or whatever, thus ensuring that it would always be up to date. This would bypass many of the political obstacles to getting the provision fixed, and it would also meet the Court's argument that the provision was based on antiquated factors.

There are probably big problems with this idea, and I'm certainly no expert on the Voting Rights Act or the unconstitutional delegation doctrine, but I thought I'd just throw it out there for discussion.


  1. The problem with the idea is that it assumes that the GOP has an interest in fixing the act. They don't and the House will not vote on a bill that fixes the act.

  2. You might be right. But a lot of Republicans did vote to extend the Voting Rights Act not so long ago, just like a lot of them voted for the Violence Against Women Act. In both cases, they recognize that Democrats have the upper hand politically, so their opposition has to be under the table. Kicking things to an agency is a way to say, "you win, for now..."

    1. Your last two comments are cryptic. In light of current events, I assume that any future deals on legislation will involve defunding Obamacare as a condition of the House of Representatives passing any bill that is remotely resembles a bill the President asks Congress to pass.

    2. In seriousness, before the Budget stuff, there were actually reports that James Sensenbrenner, of all people, was pushing for a VRA fix.


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