In collaboration with Election Law Blog, Take Care is pleased to present a series of posts offering thoughts on legislation to reform the U.S. electoral process.

There are the laws on the books, and the laws in practice. Democratic leaders have promised that their first legislative vote will come on a bill that, among other reforms, resuscitates the Voting Rights Act. For this legislation to be effective rather than symbolic, it will need to include powerful enforcement mechanisms. Among the most powerful of mechanisms is a legal framework that shifts burdens—evidentiary and otherwise—onto the states. This intrusive approach will garner few fans across the aisle. Yet political gridlock is not its only obstacle. Proponents also will need to convince the Supreme Court that Congress has the constitutional authority to intrude so aggressively on the states.

A review of the century after the Reconstruction Amendments helps to explain why burden-shifting is so critical for voting-rights legislation to be effective. During this time, minority voters enjoyed the impartial administration of elections, but only in name. In practice, the discrimination against minority voters was aggressive, widespread, and brazen. The lessons of this period confirm what any plaintiff-side attorney already knows. Namely, it’s not enough to have a legal theory. You have to be able to prove it up. And you need to be able to do so before your case no longer matters.

The ingenuity of the Voting Rights Act of 1965—the brilliance of its crown jewel, Section 5—was its recognition of this reality. Through the adoption of a unique legal structure, Section 5 accomplished what prior reforms could not: the rapid and meaningful enfranchisement of minority voters. Section 5 operated by freezing in place the election laws and practices of covered jurisdictions (primarily in the South) and requiring those jurisdictions to establish the lawfulness of any changes before they could go into effect. This preclearance regime implied more than a shifting of the burden; it turned the voting-rights framework on its head. No longer were voters forced to investigate the government, initiate complicated legal claims, and, often, endure multiple election cycles tainted by unlawful suppression before they could begin the lengthy and expensive process of seeking relief. Instead, the jurisdiction was the one forced to raise the issue, develop the record, and wait.        

The effects were striking—both after Section 5’s enactment, when minority registration rates increased dramatically, and after its 2013 collapse, when the U.S. Supreme Court functionally invalidated Section 5. Since that latter development, formerly covered jurisdictions have been passing restrictive measures for which it would have been difficult, or impossible, to achieve Section 5 preclearance. This wave of suppressive measures continued through the 2018 elections, with the trend showing little sign of abating. In the absence of the Voting Rights Act’s preclearance regime, these restrictive measures go into effect immediately, with voters left to scramble.

These voters have turned to fallback claims—claims that do not have the prophylactic protections of Section 5. This legal strategy has been predictably lacking. Plaintiffs relying on Section 2 of the Voting Rights Act, for example, have found it to be an “inadequate, costly, and often slow method for protecting voting rights.” These fallback claims rely on a much more traditional structure than does Section 5. They do not shift the burden, and they otherwise were not designed to even the playing field between voters and the jurisdictions seeking to suppress those voters. As a result, they cannot accomplish what Section 5 did.

Instead, the limitations of these claims allow recalcitrant jurisdictions to evade effective review by exploiting the control they have over the entire election process. Without their procedures frozen in place, jurisdictions can wear down challengers through a flood of different tactics, push through changes whose suppressive effects are hard to quantify, make questionable decisions at the last minute, bury relevant evidence, and drag out legal challenges—all while elections occur at regular intervals. The results of these elections allow officials to serve out their terms regardless of whether expensive and time-consuming lawsuits later reveal that unlawful conduct had tainted the process. 

In light of these realities, in a parallel universe, where members of both parties took seriously their obligation to preserve citizens’ voting rights (and reforms of the 116th Congress therefore had a chance of success), it would be imperative for the House’s legislation to feature prominently the burden-shifting framework of Section 5. Without this framework, voting-rights plaintiffs necessarily are forced to play catch up—in regularly scheduled races where the winners never retroactively lose their titles. 

Of course, in this parallel world, Congress also might need a different Supreme Court: one prepared to accept Congress’s constitutional authority to impose such a deeply intrusive framework on the states. This reflects the reality that the burden-shifting framework of Section 5 is indeed an “extraordinary departure from the traditional course of relations between the States and the Federal Government.”

This leads to a broader observation. For congressional voting-related reforms—of any variety—to have real teeth, Congress will need to be very careful about designing its legislation in a way that comports with the Supreme Court’s narrowing view of congressional authority. To that end, perhaps it can take advantage of the Court’s recent acknowledgement that the Elections Clause empowers Congress broadly (and, accordingly, be prepared to push back on arguments, which may be gaining traction, that it empowers Congress only on the margins). Or maybe it can convince a majority of the Supreme Court to rethink the assumptions underlying its 2013 decision—to recognize that, amid the “largest wave of franchise restrictions since the dark days of Jim Crow,” the United States may not in fact have “changed” so much that Congress can’t justify a decision to renew protections similar to those imposed by the original Voting Rights Act.

To be clear, there is a real tension here: between imposing effective reforms, on the one hand, and ensuring they are insulated against constitutional challenge, on the other. Striking the appropriate balance is not for the faint of heart; it requires dispassionate assessment of enforcement challenges and uncertain predictions about what a changing Supreme Court will tolerate. But, ultimately, conducting this analysis—and relying on those assessments to push the legal limits—may be critical. Otherwise, Congress may find itself unable to protect the concept of “one person, one vote” as a practical reality, rather than as mere words on a page.

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