The Modern Voting Rights Act Is Unconstitutional

I’ve written previously about how the current Texas redistricting saga – a decennial battle in that and many states – shows how the Voting Rights Act in its moden incarnation both doesn’t work and conflicts with the Constitution.  The Supreme Court’s ruling last month telling a three-judge district court in San Antonio to go back to the map-drawing board did not begin to the address these deeper issues, which will surface again, perhaps as soon as this fall in a case out of Shelby County, Alabama.

Today I published an op-ed on the subject in the National Law Journal.  Here’s an excerpt:

Originally conceived as a check on states where discrimination was prevalent in the 1960s, Section 5 [of the VRA] requires certain jurisdictions – a bizarre list that includes some of the Old Confederacy, plus Alaska, Arizona and certain counties or townships in eight other states, including (only) three New York City boroughs – to get federal approval before changing any election laws. To obtain this preclearance, these jurisdictions may propose only changes that do not result in “retrogression,” a reduction in minority voters’ ability to elect their “preferred” candidates.

Section 5 was a valuable tool in the fight against systemic disenfranchisement, but it now facilitates the very discrimination it was designed to prevent. Indeed, the prohibition on retrogression effectively requires districting that assures that minority voters are the majority in some districts – an inherently race-conscious mandate. The law, most recently renewed in 2006 for another 25 years, is based on deeply flawed assumptions and outdated statistical triggers, and it flies in the face of the 15th Amendment’s requirement that all voters be treated equally.

Read the whole thing, as well as Cato’s brief in Perry v. Perez and Roger Clegg’s article in the Cato Supreme Court Review on which one section of our brief heavily relied.