Advisory Rulemaking and the Future of the Voting Rights Act

Abstract Unlike many other statutes, the Voting Rights Act authorizes no administrative agency to issue implementing rules with the force of law. This essay nonetheless argues that guidelines issued by the Department of Justice (DOJ) through the notice-and-comment process could play a critically important role in persuading the Supreme Court not to construe the Voting Rights Act into quiescence—an outcome that otherwise seems quite likely. Though DOJ guidelines would not bind anyone outside of the agency, they could have a substantial impact on the Supreme Court's assessment of the costs and benefits of alternative statutory constructions. The guidelines I suggest would clarify the relationship between statutory and constitutional violations, while bolstering the manageability of racial vote dilution law and reducing its dependence on strong racial assumptions. This evolution in voting rights law would be difficult for the Court to bring about on its own, unaided by agency rulemaking.