The Yale Law Journal


Political Avoidance, Constitutional Theory, and the VRA

11 Dec 2007

Constitutional theory and design have been dominated by the specter of legislative and executive institutions voraciously seeking to expand their powers. But in modern political practice, the flight from political responsibility–the problem of political abdication–is at least as serious a threat. Constitutional theory has paid too little attention to this problem. And as a matter of institutional design, we are still struggling to find tools to force political actors to take responsibility they would rather avoid. Abdication, not aggrandizement, is the common thread that unites Congress’s virtual absence from any major policymaking role on terrorism-related issues in the first five years after September 11th and the Voting Rights Act (VRA) reauthorization process that Professor Persily chronicles.

The essential question the VRA process posed was whether the country or the Congress of this era was prepared for a serious–hence difficult–discussion of civil rights policy. As Professor Persily’s narrative reveals, and as my own experience with that process confirms, the answer was no. Congress last engaged in major civil rights policymaking sixteen years ago, when it enacted the Civil Rights Act of 1991. In 2006, Congress on its own would not have put civil rights issues on the agenda, but the sunset provisions of section 5 of the Act left Congress little choice. Forced to act lest section 5 expire altogether, Congress largely avoided facing the difficult policy issues raised; it ratified a regionally specific status quo that had been in place for the last twenty-five years, then locked that status quo into place for another twenty-five years to come. This was Congress’s way of hoping the issues would go away. We will see whether the Supreme Court applies a deliberation-prodding model of judicial review or statutory interpretation to press Congress into accepting the responsibility it avoided in the 2006 renewal process.

To understand the general insights into legislative process that Persily’s rich descriptive account affords, it is useful to begin with the context of the VRA today, then turn to the legislative process itself and the political economy that drove it. First, on context: when Congress last revisited the VRA in 1982, there were few black elected officials; virtually no Republican Party at the state and local levels in much of the South; voting was extremely polarized along racial lines; and the central institutional devices that occupied Congress’s attention were multimember and at-large election structures that contributed to the virtual absence of black political representation. In the last twenty-five years, all of these elements have changed, some in ways easily visible, some in ways experts recognize. There is now robust two-party competition in the South; a significant cohort of black elected officials now exists at all levels and in most states with significant minority populations, with black elected state legislators making up thirty-one to forty-five percent of all Democratic state legislators in the Deep South states of Alabama, Florida, Georgia, Louisiana, Mississippi, and South Carolina; the VRA must be applied in today’s multiethnic America, not the biracial context of the South of decades past; and racially polarized voting has declined somewhat. In the ex-Confederate and border states of Tennessee and Maryland, black Democratic and Republican candidates (respectively) for the Senate recently have done as well as white Democratic and Republican candidates in those states tend to do, and Barack Obama, of course, is one of the leading candidates for the presidency.

The effects these changes ought to have on the structure of the VRA are, of course, much debated, but the fact of change since 1982 is not. Yet the VRA that emerged from Congress in 2006 reflects not a single one of these changes in any way. Though there are as many judicial findings of VRA section 2 violations since 1990 in Pennsylvania as in South Carolina, for example, section 5 continues to cover the latter and not the former. The regionally specific areas of the country singled out for special coverage are neither expanded nor contracted from what they have been since 1982 (indeed, the structure of coverage goes back even earlier). The nature of the voting issues the Act addresses (ranging from redistricting to shortening or lengthening polling hours) is not changed in any way. The requirements states, towns, counties, cities, water districts, school districts, and the like must establish to meet the standards for bailing out of the Act are not changed at all. The special-coverage regime that was adopted for five years in 1965 as a temporary measure, extended for another five years in 1970 and another seven in 1975, then for another twenty-five years in 1982, was extended this time around for another twenty-five years–matching the longest extension in history. So while the context of the Act has changed dramatically, the structure of the Act has not changed at all.

In describing the legislative process that produced this result, Persily writes cautiously, as if hesitant to evaluate that process at all. At every point at which questions arise about what the substantive content of the VRA ought to be today, or how the legislative process ought to have addressed the difficult issues, Persily avoids analysis of principle or policy by bowing instead to realpolitik. Thus, “[i]f the can of worms that is the basic structure of section 5 had been opened, the political coalition behind the law would have collapsed . . . .” Or, no change was made to the law because any change “would have needed to appear politically evenhanded,” which created “political obstacles” to any serious discussion, thus making “the safest course” to be leaving the current regime intact in whole, without regard to whether changes to that regime—whether to expand, contract, or modify it—were necessary or appropriate in light of today’s circumstances. Given realpolitik, Persily writes, the renewed VRA “had to take the form that it did, despite widespread concerns about [whether] the coverage formula and statutory architecture” continued to make sense without any changes. Persily’s article is written from the perspective of a risk-averse member of Congress who is seeking to avoid what Persily calls the “political suicide” that would have been involved had the serious policy issues been opened up. Descriptive work of this sort is valuable in explaining the legislative process, but it is not written from the vantage point of an analysis that seeks to evaluate that process or the resulting legislation.

Despite the sense of being written on egg shells, Persily’s article does provide the essential evidence for a tale of political avoidance. First, the hearings and other aspects of the formal legislative process had no effect on the content of the law. As Persily notes, the enacted law was “virtually unchanged” from the version first introduced in the House. Although Persily does not remark the fact, it is widely known that the bill was drafted by the civil rights community, then pushed through the House process by Chairman Sensenbrenner, for whom, as Persily does note, “nothing was going to stand in [the] way.” The House hearings were not designed to provide a full airing of the issues, but for advocates to build what Persily calls “a lawyer’s brief,” one that would enable the renewed VRA to withstand later constitutional challenge. In the House, virtually none of the academics with years of expertise in the study of the VRA were called to testify. Second, Persily exposes just how dramatically the enacted VRA papered over and obscured the profound policy conflicts that actually exist on these issues in Congress. While the Senate passed the law by a 98-0 vote, the Senate Judiciary Committee could not agree on a committee report explaining what the bill actually did, and did not even issue the report until after the Senate had approved the bill and just before the President signed it into law–and even then, with the support of committee members from only one political party.

I have always thought that unanimous legislation is, paradoxically, the most problematic; it frequently signifies either that Congress is engaged in little more than credit-claiming, symbolic legislation, or when serious issues are at stake, that Congress has simply crafted a way to evade them. As Persily notes, there was “basic disagreement” about the “key provision” of the new law, despite the near unanimous overall House-Senate vote endorsing it. In the most remarkable statement of all, Persily concludes that any debate “about the purpose and utility of section 5 itself . . . likely would have led to the complete unraveling of the bill.”

More than with most legislation, the political economy of the VRA facilitates this avoidance. Employment legislation, by contrast, mobilizes powerful, well-organized, competing constituencies, business and labor, that fuel a pluralist legislative process. In the VRA context, the constituency most analogous to business would be the local and state governments uniquely subject to section 5 coverage. But these elected officials played little role in the renewal process. One reason is that they are subject to the same political constraints as members of Congress; just as none of the latter “wanted to be on record opposing the legislation,” Persily asserts that for state and local politicians, it is “[b]etter to suffer the inconveniences of preclearance than to be tagged as a politician against civil rights.” Adding to this inertial brew is the fact that the most significant partisan beneficiaries of the Act are Republicans, who gain from the Act’s requirement that safe minority districts be created where voting is racially polarized; silence and preservation of the status quo further Republican self-interest, while Democrats cannot risk resisting safe districting lest they appear hostile to the Act. That the VRA is a sacred symbol of American democracy makes discussion of issues concerning it exceptionally freighted, even when those issues do not involve the right to participation itself but far more complex issues such as the proper design of election districts.

I have long supported the VRA. And unlike some academic experts on the Act, I have not taken the view that section 5’s time has come and gone and that Congress should have allowed section 5 to expire. But “the VRA” is not a simple statute with a unitary focus; it addresses issues as far ranging as access to the ballot box and the design of election districts. With respect to the latter – the race-conscious design of safe minority election districts – I agree with Justice Souter’s comments when, in writing for the Court, he characterized this aspect of the Act as relying “on a quintessentially race-conscious calculus aptly described as the ‘politics of second best.’” Nonetheless, I supported this approach over a decade ago; the extensive empirical evidence that had been generated during the 1980s about the racial dynamics of politics convinced me of the need for intentionally creating safe minority election districts. But precisely because that venture reflects a politics of the second best, policy and law should continue to ensure that this approach continues to remain necessary, even as circumstances and the underlying empirical realities change. With the emergence of two-party competition in the South, the greater willingness of white Democratic voters to vote for minority candidates, the shift in focus to single-member districting plans, and other changes over the last ten to fifteen years, I have become concerned about whether a single-minded insistence on safe minority districting, in all contexts, remains in the best interests of minority voters and American democracy. Yet here too, Congress failed to undertake any serious assessment of the costs and benefits of this approach under the circumstances today.

Had Congress modified the VRA in any way to reflect the obviously changed circumstances since 1982, the Supreme Court might have been willing to see the reauthorization process as a good-faith effort to honor the Court’s modern Boerne-line of cases at the same time that Congress struggled with a difficult policy problem. Congress might have made it easier for jurisdictions that have not discriminated in many years to bail out of the Act. Congress might have renewed the Act not for twenty-five years, but for a period more like that in earlier versions of the Act, such as seven years: long enough to get through the next census and redistricting, but short enough to ensure that Congress would be forced to continue to revisit these issues and not defer for another generation serious questions about how section 5 should be updated to reflect contemporary circumstances.

Instead, as Persily’s facts amply testify, Congress has, whether intentionally or not, in effect thrown down a gauntlet to the Court. The renewed VRA is the same as the VRA of 1982. It makes no concessions to the post-1982 Boerne doctrines nor to the social, political, and institutional changes since 1982. Yet this is not economic legislation enacted pursuant to Congress’s Commerce Clause power. It is legislation that implicates multiple domains of the Court’s insistence that the Constitution puts a special obligation on Congress to ensure adequate justification for its legislation. Section 5 stands at the intersection of race-conscious policymaking and federalism, the latter in the unique context of regionally specific legislation; in each of these domains, the Court has insisted that legislation rest on an adequately documented foundation. As Professor Persily accurately portrays, realpolitik provides the best explanation for why Congress left the VRA’s essential structure and coverage unchanged. The question waiting in the wings is whether realpolitik provides an adequate justification when the Supreme Court confronts the inevitable constitutional challenge to the power of Congress to reenact the distinct coverage regime of section 5 for another twenty-five years.

Richard H. Pildes is the Sudler Family Professor of Constitutional Law at New York University School of Law.

Preferred citation: Richard H. Pildes, Political Avoidance, Constitutional Theory, and the VRA, 117 Yale L.J. Pocket Part 148 (2007),