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

43 Pages Posted: 25 Aug 2005  

Heather Gerken

Yale University - Law School

Date Written: August 22, 2005


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, with congressional hearings on its fate beginning soon. Section 5 requires select localities - mostly states in the Deep South - to ask the federal government's permission before making any change, no matter how small, 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 everyone seems to think, between maintaining the Act's decades-old regulatory structure or 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-way approach would look like. It proposes an "opt in" approach 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 approach thus offers a concrete strategy for tying the fate of political elites to average citizens 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.

Keywords: Voting Rights Act, Section 5, race, voting, election law, responsive regulation, political participation

Suggested Citation

Gerken, Heather, A Third Way for the Voting Rights Act: Section 5 and the Opt-In Approach (August 22, 2005). Harvard Public Law Working Paper No. 118. Available at SSRN: or

Heather Gerken (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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