Section 5 as Simulacrum
24 Pages Posted: 16 May 2013 Last revised: 9 Jun 2013
Date Written: May 15, 2013
In addition to its remarkable substantive impact, Section 5 of the Voting Rights Act is a provision of enormous expressive and historical importance. But the extent to which the statute is also a symbol has some unrecognized downsides. In the current Shelby County litigation, reviewing a challenge to section 5, much of the argument seems to revolve around a simulacrum of section 5, rather than the statute itself. This simulacrum is much like an editorial cartoonist’s rendering of a political figure, in which particular features take on exaggerated salience. Many elements of the simulacrum have at least the ring of truth, which helps to explain the staying power of the image. But though the cartoon version of the preclearance regime resembles the original, the exaggerated features — including preconceived notions of the obsolescence of the regime’s primary operating system, the extent to which it fosters racial essentialism, and its place within our federalist structure — distort rather than clarify our understanding of the legality of the portions of the Voting Rights Act at issue. This short essay investigates some of the more striking elements of the section 5 simulacrum, contrasting the cartoon vision of section 5 with the more fully contextualized operation of the actual statute.
Keywords: section 5, Voting Rights Act, preclearance, Shelby County, VRA, constitutional, racial entitlement, coverage, bailout
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