Saving 5 by Scrapping 4

reported today on the meeting which took place this week at DOJ about the potential demise of Section 5.  In reality, it will be the Section 4 triggers that lead to the demise of Section 5 enforcement.  The demise of Section 5 can be traced back to 2006 when nobody had the stomach to deal with the Section 4 triggers.  The truth of the matter is that no member of Congress from a state currently exempted from Section 5 obligations wanted to bring their state under the purview of Section 4. So nothing was done in 2006, and nothing was done since.

But there are ways for the Section 5 model to remain viable.  Instead of Section 4 triggers that use geography, turnout and tests, if Section 5 obligations were based on opt-ins, they would be more constitutional.  For example, if a jurisdiction was found to be liable for violating a provision of the Voting Rights Act (think Osceola FL or Euclid OH), then they would be subject to Section 5.  Blaine County, Montana, would be another example.  All of these jurisdictions were found to have violated Section 2.  Imposing a preclearance requirement on these jurisdictions found to have violated the Voting Rights Act would certainly be far more constitutional than the current Section 4 triggers.  It might also make sense, after all, these jurisdictions, found liable in the previous decade for violating the Voting Rights Act, went through redistricting in the 2010 cycle without any court oversight, and without any need to balance new legislative plans against those imposed after the liability findings.

Of course the predictable corners will oppose this idea because it doesn't give enough power to the federal government.  They will point out that Section 5 coverage will be dependent on Section 2 liability.  But come June of 2013, advocates of the current Section 4 triggers might find the opt-in to be a pretty good alternative to what the Supreme Court is liable to do with the preclearance regime.

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