For scholars of legislation, the legislative history of the 2006 reauthorization should be viewed as nothing short of unprecedented. Scholars in this field are familiar with examples and debates of post-enactment legislative history. However, never before (as far as I can surmise) has the particular confluence of events that surrounded the 2006 reauthorization occurred. A bill supported unanimously in the Senate and with little opposition in the House became the subject of concerted debate in a post-enactment Senate Judiciary Committee Report filed with the support of only one party’s members. More to the point, the Senate Report serves to undermine the constitutionality of the unanimously supported bill, as well as proffer a particular interpretation of its central provision that would not have received bipartisan support.

For scholars of constitutional law, the article describes the nearly impossible situation that Congress found itself in due to doctrinal and political constraints. These constraints prevented Congress from altering the geographic scope of section 5 of the VRA (which requires covered jurisdictions to obtain federal preclearance before amending their voting procedures) to include the newest generation of voting rights violators. The “congruence and proportionality” test for determining when Congress has exceeded its Fourteenth Amendment enforcement powers simply does not contemplate a situation like that existing with this law. First, if the law is working as intended, it will prevent the development of a record that would best support its constitutionality. In most instances, Congress must demonstrate a pattern of constitutional violations that the proposed bill will remedy or prevent. Here, if the law acts as an effective deterrent, such violations should not be occurring or observed. Second, given that the law applies to some jurisdictions but not others, the absence of differences in the voting rights records of covered and noncovered jurisdictions could suggest either that the law is working as intended or that it has outlived its usefulness. Given this quandary, Congress focused on the evidence of voting rights violations in the covered jurisdictions without attempting to distinguish them from the noncovered jurisdictions. Even though the shortcomings of the legislation and its geographic scope were widely recognized, tinkering with its basic architecture was both politically impossible and constitutionally risky. Better to stick with a law that the Court had previously upheld and one that covered jurisdictions had come to accept, rather than gamble on a regime without stare decisis and settled regulatory expectations on its side.

Finally, for election law scholars, the article attempts to interpret the main innovation of the law: the new, cryptic retrogression standard that prevents laws, such as redistricting plans, that “diminish[] the ability” of minorities “to elect their preferred candidates of choice.” The potential interpretations of the law run the gamut from entrenching either Republican or Democratic gerrymanders. The standard might mean, for instance, that a plan reducing the reelection chances of Democratic candidates is now illegal, given that minorities tend to favor Democrats. Or it might forbid the enactment of plans that reduce the chances of the election of minority candidates. Or it might mean, as the Senate Report suggested, that no plan may eliminate “naturally occurring districts that have a clear majority of minority voters.” Each of these interpretations falls prey to charges of partisan bias or racial essentialism.

To avoid such pitfalls and to avoid freezing district racial percentages for the next twenty-five years, the law should be read as preventing plans that reduce the aggregated probability across districts of the election of candidates favored by racial minorities and disfavored by whites. To avoid constitutional difficulty and the partisan bias and racial essentialism of alternatives, racial bloc voting analysis should form the core of the new retrogression standard. As racial polarization in the covered jurisdictions declines, the new law ought to be flexible enough to avoid forcing jurisdictions to pack minority voters into districts that, over time, will actually disadvantage them.

Nathaniel Persily is Professor of Law and Political Science at Columbia Law School and the Sidley Austin Visiting Professor of Law at Harvard Law School.

Preferred Citation: Nathaniel Persily, The Promises and Pitfalls of the New Voting Rights Act (VRA), 117 Yale L.J. Pocket Part 139 (2007), http://yalelawjournal.org/forum/the-promise-and-pitfalls-of-the-new-voting-rights-act-vra.