Reforming The Voting Rights Act

Last June SCOTUS ruled against the VRA’s preclearance provisions. Maya Rhodan reports on a bipartisan effort to amend the law:

The bill would offer new criteria under which states need to seek permission from the Justice Department before enacting changes to voting laws, known as preclearance. Reps. Jim Sensenbrenner (R-Wisc.) and John Conyers (D-Mich.), along with Sen. Patrick Leahy (D-Vt.), presented the new bill, which they called a direct response to the Supreme Court ruling. … The bill offers a new coverage formula requiring any state that has committed five voting violations over the most recent 15-year period be subjected to the Voting Rights Act’s preclearance provision. In the Shelby County v. Holder decision last year, the court ruled that the standards for determining the states and jurisdictions that needed preclearance were based too heavily on their history of discrimination, rather than current discriminatory practices. Under the new bill, individual jurisdictions could be subjected to preclearance after three voting violations, or only one if the jurisdiction has had “persistent and extremely low minority voter turnout.”

Justice Department rulings against voter ID laws, which have been pushed by Republicans and condemned by Democrats, would not count toward the number of violations that could lead to preclearance.

Zachary Roth and Adam Serwer explain the voter ID exemption:

The bill wouldn’t stop the Justice Department from challenging voter ID laws as racially discriminatory. But it would treat such laws differently from other types of racial discrimination in voting in two ways. First, the expanded Section 3 “bail-in” provision doesn’t apply to voter ID. So a state can’t be placed under federal oversight merely because it enacted a discriminatory voter ID law. That could have a big impact in Texas: The Justice Department’s ongoing lawsuit against the state’s voter ID law asks to have Texas brought back under federal oversight. Second, an objection by the Justice Department to a voter ID law can’t count as one of the five violations that puts a state under federal oversight—though a court ruling against a voter ID law does count.

Republicans in numerous states have pushed voter ID laws recently. Voter ID laws in Wisconsin, Texas, and North Carolina are currently being challenged by the Justice Department or civil rights groups. A wealth of evidence shows the laws have a disproportionate impact on minorities, who are more likely than whites to lack ID. But Spencer Overton, an expert on voting rights at George Washington University Law School, suggested the carve-out might be worth it if it helps gain GOP support. “These concessions,” Overton said, “may be necessary to satisfy the states’ rights concerns of the Roberts Supreme Court, and the political concerns of Republican members of Congress.[“]

Jenée Desmond-Harris looks at which states would lose preclearance requirements under the new rules:

According to the Advancement Project, the bill’s restoration of the federal preclearance requirement for states that have had at least five voting-rights violations within the past 15 years would appear to require Georgia, Texas, Mississippi and Louisiana to obtain preclearance before implementing voting changes. However, the civil rights organization also predicts that states such as Alabama, Alaska, Arizona, North Carolina, South Carolina, Virginia and Florida would not be automatically covered.

“The exclusion of North Carolina is especially egregious, considering the flood of harmful voting policies from the state,” said Advancement Project Co-Director Penda D. Hair in a statement released on Thursday. “These measures include a 2012 redistricting plan that diluted the power of African-American voters; the passage of a voter-suppression law that cut early voting by a week, eliminated same-day registration and requires strict voter ID, among many other restrictions; and last week’s decision that residents of the 12th Congressional District will be forced to go 300 days without representation.”

Supporters of the VRA are divided on the amendments:

While members of the Congressional Black Caucus signaled their support for the legislation, according to National Journal, the Hispanic Caucus and civil rights organizations have expressed misgivings. Voter ID laws are exempted from the violations list, meaning restrictive changes passed in North Carolina, Texas, and elsewhere won’t be held against those states. “These [voter ID] laws make it harder for people of color to  have a say in our democracy,” said Katherine Culliton-González, director of voter protection for the civil rights advocacy organization Advancement Project. “There’s no reason for this distinction. It’s arbitrary.” (Voter ID laws can still be blocked if the Department of Justice or federal courts deem them unfair; they just won’t count toward a state’s five-violation total.) Culliton-González also took issue with a provision that only court rulings, not consent decrees or settlements, will count in a state’s violation total. Organizations like Advancement Project often settle voting rights lawsuits to get changes implemented faster, she said, whereas the proposed bill would incentivize drawing out court proceedings.

Rick Hasen weighs the constitutionality of the new provisions:

There is lots of good and constitutional stuff in this bill. The idea of requiring jurisdictions making election changes to publicize them on the Internet is a terrific idea, and allows for timely lawsuits if necessary to combat draconian voting changes throughout the country. Disclosure is an unmitigated good here, and it is hard to see any constitutional objection. Similarly, making it easier to get preliminary injunctions in section 2 cases makes a lot of sense, and clears procedural hurdles without infringing on state sovereignty. … The new coverage formula pegged to relatively recent voting rights violation is likely, but not certain, to be held constitutional if enacted. The benefit of this new formula is that it is tied to current conditions—looking at recent voting rights violations, and in the case of subdivisions, recent minority voter turnout statistics. This tends to defeat the Shelby County holding that requires under principles of “equal sovereignty” of states that any preclearance regime be tied to current conditions.

Where the bill goes from here:

The effort does not yet have full buy-in from Republican leadership, said a senior GOP aide. Leaders are wary of pushback from conservative members and are skeptical that the bill could attract the support of a majority of the Republican Conference. They are also concerned that Democrats would politicize the issue to make gains in the 2014 midterm elections. Furthermore, Sensenbrenner, a former chairman of the Judiciary Committee and an author of the last extension of the Voting Rights Act in 2006, has occasionally voted against leaders’ priorities, most recently casting a “no” vote on the omnibus appropriations bill. That has damaged his clout with leaders, the aide said. Conyers suggested the fate of the new VRA legislation is in the hands of the House Judiciary panel’s current chairman, Robert W. Goodlatte, R-Va. “I haven’t raised it directly with him yet so I can’t say” whether he would support the effort, Conyers conceded, “but the question may come down to whether we want to do it in parts. … I’m not sure how this is going to play out.”

Beutler expects the GOP to muck it up:

[T]he full menu of objections suggests that Republicans are considerably more focused on the internal and external political ramifications of fixing the VRA than on the substantive and moral questions the Supreme Court thrust upon them. Not a hopeful sign. There are one or two countervailing dynamics at work, though. The bill is designed to attract some non-trivial amount of GOP support, including from Southern Republicans. Rep. Jim Sensenbrenner, R-Wis., who co-authored the bill, told reporters on Thursday that Reps. Trey Gowdy, R-S.C., and Spencer Bachus, R-Ala., have both signed on to the bill, and Sen. Patrick Leahy, D-Vt., expressed unusual confidence that the bill will pass the Senate.

And at the risk of veering into amateur psychology, I’m pretty convinced that some Republican leaders — particularly Majority Leader Eric Cantor, R-Va. — sincerely believe it would be wrong to let the Supreme Court’s decision be the final word on voting rights in states and districts with histories of minority disenfranchisement. But with $2 and a bundle of Eric Cantor’s best intentions, you can buy a slice of pizza after getting turned away at your polling place in November. And at this point it doesn’t look like GOP leaders are interested in putting more than their intentions on the line.