A Third Way for the Voting Rights Act: Section 5 and the Opt-In Approach

Abstract

One of the most powerful and intrusive civil rights provisions ever passed—section 5 of the Voting Rights Act—is scheduled to sunset in 2007. Congressional hearings on its fate have already begun. Section 5 requires select localities—mostly states in the Deep South—to ask the federal government’s permission before making any change in the way they run elections. Despite its successes, section 5 remains extremely controversial. Even experts on the Act are deeply divided as to what Congress should do. Our choice is not, as the current debate suggests, between maintaining the Act’s decades-old regulatory structure and allowing section 5 to expire. There is a more dynamic approach, a middle ground that avoids the problems identified by the Act’s critics while maintaining a robust safety net for minority voters. This Essay sets out to describe what such a third approach would look like. It proposes an “opt-in” system that would privilege local control and community involvement in voting rights enforcement. Such an approach would provide the right types of incentives for those involved in policing racial politics and deploy civil rights enforcement resources more effectively than the current system. More intriguingly, an opt-in approach would create a new set of institutional incentives for political elites to pay attention to the needs and concerns of those most affected by their decisions. An opt-in system offers a concrete strategy for tying the fate of political elites to minority voters and integrating debates about electoral structures into everyday politics. By reducing top-down regulation of election law, it may generate bottom-up support for voting rights enforcement.