Let's Not Call the Whole Thing Off Just Yet: A Response to Samuel Issacharoff's Suggestion to Scuttle Section 5 of the Voting Rights Act

Abstract

In a recent essay, Professor Issacharoff argued that Section 5 should be ended, not mended. He arrived at this conclusion by focusing on statewide, post-2000 Census redistrictings undertaken in Georgia and New Jersey to make a couple of core points about Section 5: first, that there appears to be no compelling reason for the law to treat minority voters in New Jersey, a state not covered by Section 5, differently from minority voters in Georgia, a state that is covered by Section 5; second, that the Supreme Court's decision in Georgia v. Ashcroft leaves Section 5 with an unadministrable substantive standard that allows Section 5 to more easily be used as a tool for partisan manipulation. In response, I argue that Professor Issacharoff places too much emphasis on Section 5's relevance to congressional and statewide redistricting while neglecting the impact of Section 5 on local government. I then argue that there are reasons to treat Georgia differently from New Jersey, because of the long and sorry history of discrimination in the former jurisdiction. Finally, I contend that despite the potential for partisan decision-making in the administration of Section 5, there are currently adequate legal and political safeguards to prevent all but the most marginal of partisan decision-making.

Keywords: Voting rights act, section 5, issacharoff