The Fifty State Solution to Shelby County
The commentators’ verdict is in: Section 5 of the Voting Rights Act is finished. Although the preclearance section is still good law, Chief Justice Roberts’s opinion struck down the “coverage formula,” Section 4, and so preclearance (Section 5) now lies dormant.
Chief Justice Roberts invited Congress to craft a more specific coverage formula, but many argue that there’s no way Congress can agree on which states should be covered, i.e., those with the highest likelihood of suppressing minority votes. So – the conventional wisdom goes – there’s no politically palatable way to fix Section 4 and re-activate Section 5.
But there is a potential solution: extend the coverage formula to all 50 states. In other words, make every jurisdiction preclear changes before they go into effect. Don’t just apply Section 5 of the VRA to the South; apply it to the entire country.
The fifty-state solution would satisfy Shelby County‘s legal standard, since the new coverage formula would no longer violate the “equal sovereignty” of individual states by treating them differently from each other. Every state would be treated the same.
Expanding Section 5 to the entire country would also be more politically palatable, since no Members of Congress would have to “figure out which states are racist and which ones aren’t.” Everyone’s covered.
The downside is the increased administrative cost of covering the entire country under the VRA. The Justice Department will need more attorneys to help with increased preclearance requests. But even this cost could be decreased over time by allowing states to “bailout” of Section 5 coverage if they’ve gone a certain number of elections without any violations.
The politically feasible way to fix the VRA isn’t to make it narrower; it’s to broaden coverage to all fifty states.
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