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Congress needs to fix plenty of things, but not the Supreme Court

Rush is a professor of politics and law and director of the center for international education at Washington and Lee University.
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Lawmakers in the Virginia Capitol have an opportunity to transform the quality of elections, according to Washington and Lee University professor Mark Rush.

Saving the Voting Rights Act: Virginia as a case study for reform

Rush is a professor of politics and law and director of the center for international education at Washington and Lee University.

Enactment of the Voting Rights Act in 1965 remains a celebrated landmark in American history. It's time to celebrate the law's potential anew by making some big changes in how state legislatures are elected. My home state of Virginia illustrates the merits of doing so.

First, a quick refresher course: The law enacted 55 years ago put an end to literacy tests, poll taxes and a host of other discriminatory practices that had kept minority voters from gaining access to the polls. To protect them from being gerrymandered out of power, Section 2 forbade discriminatory redistricting or other practices that would deny minority voters an equal opportunity "to participate in the political process and to elect representatives of their choice."

Section 2 has generally been implemented through what can best be described as the "affirmative gerrymandering" of election districts to include enough minority voters that their candidate of choice would win.

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On the one hand, this represents nothing less than retributive justice: Districts across the country had been drawn for decades to make sure minority voters could not elect their preferred candidates, so redrawing them to enhance minority representation was a way to redress the impact of that discrimination. On the other hand, in assuring the election of more minority legislators, the country — courts, legislators, litigators and experts — took away perhaps the greatest promise of the Voting Rights Act: to give minority voters a choice on Election Day. This was because the switch worked only because newly gerrymandered, winner-take-all elections ensured minority representation opportunities.

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The Supreme Court

If the electors can be faithless, why have an Electoral College?

Rush is a professor of politics and law and the director of the center for international education at Washington and Lee University.

This spring, the Supreme Court will hear arguments in Colorado Department of State v. Baca and then decide if members of the Electoral College are bound to abide by the laws of the states from which they hail.

In the case, Michael and Polly Baca as well as Robert Nemanich — electors from Colorado in 2016 — assert that this year's (and all future) electors have the right to vote for anyone, regardless of how the people of Colorado vote. The Supreme Court chose to hear the case because of a conflict between two lower courts. The Washington Supreme Court ruled a state could bind its Electoral College delegates. In Colorado, the 10th U.S. Circuit Court of Appeals ruled that this was not the case.

The Baca case is vexing for numerous reasons. Foremost, it highlights once again the arcane and undemocratic manner in which the United States elects its presidents. According to the Constitution, one needs a majority of the electoral college votes — not a majority of the popular vote — to win the election. For most of the country's history, the winner received a majority of both. But in 2000 and again in 2016, George W. Bush and Donald Trump did not win the popular vote.

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