Stephanopoulos on the Future of the Voting Rights Act

Why the Supreme Court May Soon Strike Down a Key Section of the Voting Rights Act
Nicholas Stephanopoulos
The New Republic
September 10, 2012

Six years ago, to much fanfare, Congress extended the lifespan of the Voting Rights Act’s crucial preclearance provision, Section 5, by twenty-five years. (Section 5 requires covered jurisdictions, mostly in the South, to get permission from the federal government before enacting any new electoral laws.) But Congress didn’t just renew Section 5; it also revised it. Section 5 now bars covered jurisdictions from diminishing minority groups’ “ability to elect” the candidates of their choice. The provision now also forbids these jurisdictions from passing election laws with “any discriminatory purpose.”

At the time these amendments were made, their consequences were highly uncertain. No one knew whether minorities would be able to elect more or fewer candidates as a result, or whether Democrats or Republicans would benefit. As Columbia professor Nathaniel Persily wrote in 2007, “there is disagreement about . . . how one determines minorities’ ‘ability to elect,’” and “[t]he potential interpretations of the law run the gamut from entrenching either Republican or Democratic gerrymanders.”

Thanks to a major decision last Tuesday by a three-judge court in Washington, D.C.—the first to carefully examine the new statutory language—we no longer need to speculate about the law’s implications. At least as applied by these judges, the revised Section 5 is extraordinarily favorable to minorities, and almost as beneficial to Democrats. But, ironically, these very attributes may spell doom for the provision when, most likely next year, it reaches the Supreme Court.