Reconstructing Section 5: A Post-Katrina Proposal for Voting Rights Act Reform

Section 5 of the Voting Rights Act (VRA)—the preclearance provision that is the most potent weapon in the nation’s civil rights arsenal—quietly suffered an unexpected defeat in the aftermath of Hurricane Katrina. The “static benchmarking test” used to administer section 5 failed to fulfill a core VRA mandate: the preservation of minority political power. This Note provides the first critical account of this failure and argues that it transcends the specifics of Katrina. The Note then proposes a narrowly tailored doctrinal “fix” to resurrect section 5’s enforcement powers after a disaster. author. Yale Law School, J.D. expected 2007; University of Cambridge, M.Phil. 2003; Harvard University, A.B. 2002. I am deeply indebted to Professors Owen Fiss and Heather Gerken who both inspired and challenged me to develop this Note, and to Professors Dennis Curtis and Robert Solomon who directed me in the Hurricane Katrina Clinic. Many thanks to Marie Boyd, Jessica Bulman-Pozen, Kristen Clarke-Avery, Natalie Hershlag, Sia Sanneh, Robert Scott, and Katherine Wiltenburg Todrys for their incisive comments and edits. Finally, I dedicate this Note to the memory of my sister, Tiffani Simone Williams, who I miss every day. WILLIAMS_11-12-06_FORMATTEDFORSC1 3/14/2007 4:37:11 PM reconstructing section 5