The role of an election law scholar these days is much like that of an anthropologist specializing in the study of human sacrifice. At a certain point, some of us in the field suppress natural human impulses of disgust and revulsion and replace them with fascination and curiosity. How else does one stomach the pervasive partisan greed, the wild conspiracy theories, the actual conspiracies, the pretextual arguments, and the often vicious attempts to use the law for partisan and personal gain? My article The Promise and Pitfalls of the New Voting Rights Act may appear too descriptive and anodyne to some, because of its attempt to treat this important legislation as a phenomenon that needs to be explained before it can be judged. This Reply gives me the opportunity to offer some of the judgment that might have been lacking in the principal article and to reply to critics who have responded in print and those who have responded as part of litigation surrounding the constitutionality of the new Voting Rights Act (VRA).

My basic position on the desirability of the new VRA is that the legislation does not go far enough, and that the policy window offered by the reauthorization process could have been used to trade some of the anachronistic features of section 5 for more transformative legislation dealing with the more pressing concerns for minority voters. However, the political judgment made by the law’s advocates—that a third of a loaf was better than none and that the political environment of the summer of 2006 offered the best opportunity to pass some kind of reform—is one that is easier to criticize from the ivory tower than from the trenches where voting rights battles are fought. As my colleague Heather Gerken has analogized it, election law academics behaved like the unaccountable crowd in the television game show Deal or No Deal, shouting at the participants from the sidelines to risk certain victory for a bigger prize.

Even critics of the new VRA concede that the legislation has some benefits. Despite the lack of coverage of certain “bad” jurisdictions, the unwarranted coverage of some “good” jurisdictions, the partisan infection of the Voting Section at the DOJ, or the preclearance of discriminatory voting laws, section 5 of the VRA still prevents some discriminatory voting practices that all would condemn. As the principal article argues, for the negligent or intentionally racist local official who otherwise would be uninhibited in moving a polling place, changing a date of an election, or erecting some other barrier to voting, section 5 places DOJ “in the room” so as to make such a choice more costly and less likely. As the debate in Congress illustrated, there are many recent examples where such discriminatory laws were denied preclearance.

Given the recognized benefits of section 5–even if great disagreement exists as to the magnitude of such benefits–the question then turns to what the actual costs of the legislation are and what the opportunity costs were from the failure to pass something different. For some jurisdictions and for some types of voting changes (particularly redistricting plans), the costs of compliance can be considerable, but for the overwhelming majority of preclearance submissions the process is pro forma and the cost is what most would consider minor. The more important cost from my point of view is the potential cost to racial minorities if the retrogression standard is read, as the Senate Report encourages, to allow or maybe even force excessive packing into districts when racially polarized voting does not justify it. If the new retrogression standard, despite the intentions of its supporters, becomes an avenue for perpetual overconcentration of minorities in districts, such a downside could tip the balance against the legislation–specifically because of its civil rights-related costs. For that reason, about half of the article is dedicated to offering an interpretation of the new retrogression standard that avoids its use as a tool to thwart minority voting rights through dilutive packing. So long as it is not so employed, I think the actual benefits exceed the actual costs.

What about the opportunity cost of the legislation? Did the passage of this Voting Rights Act prevent the passage of a better Voting Rights Act–that is, one that offered more transformative change and less risk of being declared unconstitutional? We should start with the obvious point that the reauthorization does not prevent Congress from adopting comprehensive election reform right now. The fact that it has not done so might suggest something about the likelihood that a more transformative bill could have been passed in 2006 or 2007. The most one can say is that the impending expiration of certain sections of the VRA placed voting rights advocates in a uniquely strong position to threaten legislators who refused to vote in favor of a reauthorization bill, whatever it might have said. I tend to think that the threat was credible enough that more could have been gotten for it in 2006 and that the chances for substantial reform in the subsequent Congress would have increased. However, in many instances during the reauthorization fight, particularly when the immigration controversy started to spill over into debate concerning sections of the VRARA, it appeared the process might come off the rails. The near-consensus on the bill masks the several occasions where disagreements might have prevented its progress to the floor of the House or Senate. Even if one believes that a Democratic Congress might have proposed and passed bolder reforms, a perception that the VRARA had become a partisan bill could also have led the President to believe thatless political heat would be generated by a decision not to sign it.

Was the legislative process leading to the VRARA particularly dysfunctional, as Richard Pildes suggests? With the exception of the bizarre history of the Senate Report, I tend to think not. The balance or lack thereof in individual hearings or the existence of fundamental disagreements over legislative meaning that were never fully aired does not distinguish the VRARA from many other laws. The legislative process was arguably more balanced and complete than that over the PATRIOT Act, the new Medicare prescription drug bill, or any number of other laws in which a confluence of motives and fears leads legislators to avoid debates that could paralyze the legislative process. Perhaps one might say that political avoidance poses special constitutional dangers in the context of civil rights legislation, where the Boerne standard forces Congress to develop a more complete record than with other types of legislation.Just such a claim is part of the argument of those challenging the constitutionality of the VRARA.

I want to suggest, however, that the Boerne standard, in important ways, is partially responsible for these alleged shortcomings of the legislative process. First, the aggressive federalism review expected of this law led to the gamesmanship in the Senate Report and undoubtedly led some (as with the Bipartisan Campaign Reform Act, for example) to vote for the bill with the hope and expectation that the Court might declare it unconstitutional. Second, the alleged lack of robustness of the hearings and debate in Congress becomes a natural consequence of supporters’ quite legitimate fear that the Court will search the legislative record for evidence suggesting the law’s lack of “congruence and proportionality.” Third, the retention of the outdated coverage formula, in particular, represents the risk aversion (or political avoidance, if you prefer) caused by Boerne review. Everyone agrees that the coverage formula is overinclusive and underinclusive of the jurisdictions guilty of violating minority voting rights. But the current formula had the virtue of being repeatedly upheld by the Court, once even in the post-Boerne era. The necessary updating of the formula–for example, by focusing on section 2 violations, jurisdictions’ racial percentages, recent voter turnout, or some other metric–would have given skeptical Justices an additional argument as to why previous precedent should not apply to the reauthorized VRA.In effect, the Boerne standard chilled the kind of legislative innovation that the expiration of the VRA was designed to encourage. Resigning the legislation to the imperfect coverage formula was simply the safest constitutional course to follow, even if it too might not survive review in the end.

The Court should relax the strictures of Boerne review in the context of congressional efforts to protect voting rights and rely instead on its precedent from South Carolina v. Katzenbach through City of Rome v. United States. Striking down the new VRA as exceeding Congress’s power might reopen the policy window that the reauthorization closed, but it will seriously constrain Congress’s efforts to protect voting rights with new and different legislation. Although upholding the new VRA will not remedy the shortcomings of this particular law, it might encourage legislative creativity when it next expires, or, one must hope, someday much sooner.

Nathaniel Persily is Professor of Law and Political Science at Columbia Law School.

Preferred Citation: Nathaniel Persily, The Constitutional Relevance of Alleged Legislative Dysfunction, 117 Yale L.J. Pocket Part 256 (2008), http://yalelawjournal.org/forum/the-constitutional-relevance-of-alleged-legislative-dysfunction.