Shelby challenged Section 5 of the VRA, the section that requires jurisdictions with a history of discrimination to seek pre-approval of changes in voting rules that could affect minorities. Instead of striking down Section 5, though, the radicals on the Court invalidated Section 4, the provision that determines the states and localities covered by Section 5. In doing that, the Court leaves it up to Congress (a dysfunctional, ideologically divided congress held hostage by extremists) to update that list of states and localities. Congress overwhelmingly reauthorized the Voting Rights Act in 2006 (unanimously in the Senate and by a vote of 390-33 in the House), but in the Obama era, that bipartisanship proved hard to repeat.
Repeat we must, however, and to that end Democrats are starting to explore a revision of the VRA.
“As Chairman of the Judiciary Committee, I intend to take immediate action to ensure that we will have a strong and reconstituted Voting Rights Act that protects against racial discrimination in voting,” Sen. Patrick Leahy (D-VT) said in a statement after the decision. [...]There's a tiny bit of encouragement coming from (of all people) House Majority Leader Eric Cantor (R-VA) who seems to have sincerely been moved by his trip to Selma with civil rights icon Rep. John Lewis (D-GA). Cantor says that he will talk with Rep. Lewis about how Congress should respond to the decision.
On the assumption that the Voting Rights Act process will follow the same path other legislation has traveled this Congress, the Senate will act first, and the House will have to decide whether or not to follow suit. Democrats can exert pressure, but they’re effectively cut out of the decision.
“I would like to see something called—well, I haven’t even discussed this with my caucus, but—the John Lewis Voting Rights Act, which would address the concerns that the Court put in its decision about Section 4,” House Minority Leader Nancy Pelosi told reporters Wednesday. “It’s really a step backward and it’s not a reflection of what is happening in our country in some of these places. And when we put that bill together, when it was passed last time, it passed overwhelming, overwhelming 98 to nothing in the Senate and 390-something to almost nothing in the House. And it was bipartisan and we came to terms on it, in a way that we were all jubilant about the passage of it, Democrats and Republicans alike.”
Below the fold, we'll discuss a few of the options that Congress might consider, as well as what's been happening in the states since the decision came down.
Before we go there, though, it’s a little known fact that the U.S. Constitution does not guarantee the right to vote for everyone, but we are fighting to change this. Please sign the petition to join Daily Kos, Color of Change, and a growing movement to pass a constitutional amendment guaranteeing and protecting the freedom to vote for all.
While we fight for a constitutional amendment guaranteeing the right to vote, here are a few ideas being floated as an immediate fix.
- Richard Pildes at Election Law Blog argues that the answer lies within Section 3 of the VRA, a provision that "gives courts the power to order a jurisdiction to start pre-clearing its voting changes for a period of time." Pildes makes the case that having federal courts, rather than the Department of Justice, determining jurisdictions that would need to have voting changes pre-cleared would depoliticize the issue. He argues that a few "relatively straightforward" amendments to Section 3 would make it work.
Section 3 could be amended to include violations of the Voting Rights Act itself; Congress could also include significant violations of the other federal statutes to protect the right to vote that have been enacted since 1965, including the Motor Voter Registration Act and the Help America Vote Act. In addition, Section 3 should simply include any violation of the 14th and 15th Amendments with respect to voting rights. Since 1965, the Supreme Court has recognized in many contexts that the right to vote can be constitutionally violated even without intentional discrimination being found. Courts have varied thus far in whether they have required repeated violations of a single violation as sufficient to put an area under judicial pre-clearance.
- Steven Hill, author of 10 Steps to Repair American Democracy: A More Perfect Union-2012 Election Edition, has another suggestion: turn it to the states and have them enact automatic voter registration.
[A]utomatic voter registration is a great tonic to voter-ID laws, which Democrats and civil-rights leaders have fought doggedly. If voter IDs were coupled with a unique identifier for every eligible voter, they could be used to implement automatic voter registration. That would turn voter-ID laws on their head, registering to vote millions of minorities and youth -- far more than the number who are likely to stay home for lack of a voter ID. This idea was endorsed by the 2006 Commission on Federal Election Reform, co-chaired by former President Jimmy Carter and GOP uber-consigliere James Baker III.Oregon's House passed such a bill this week. This could be done, Hill argues, in every state that has majority Democratic rule. Other means of expanding the vote he argues for are "guaranteed early voting and laws improving absentee and provisional ballot procedures," and election day registration. These are all good sort of mechanical ideas for expanding the vote, and should be pursued alongside efforts to guarantee the right to vote.
What's happening in the states?
- Texas lost no time in going forward with the laws it was prevented from enacting by the Justice Department under VRA.
With the Supreme Court suspending the mechanism that forced Texas to get a federal OK before it can implement any election law change, state Attorney General Greg Abbott asserts that nothing now can stop the state from activating its controversial voter ID law.U.S. Rep. Marc Veasey (D-TX) along with a number of African-American and Hispanic plaintiffs, has filed suit in federal court to try to halt the voter ID law implementation, arguing that the law "violates section 2 of the Voting Rights Act and that the Texas Legislature enacted the law with a discriminatory purpose in violation of the 14th and 15th amendments to the Constitution."
“With today’s decision, the State’s voter ID law will take effect immediately,” Abbott announced. “Redistricting maps passed by the Legislature may also take effect without approval from the federal government.”
- North Carolina is moving ahead with voter ID.
A bill requiring voters to present one of several forms of state-issued photo ID starting in 2016 cleared the House two months ago, but it's been sitting since in the Senate Rules Committee to wait for a ruling by the justices in an Alabama case, according to Sen. Tom Apodaca, R-Henderson, the committee chairman. He said a bill will now be rolled out in the Senate next week.
- In Colorado, our old nemesis Secretary of State Scott Gessler (R), is still at it:
The latest round of letters questioning the citizenship of some Colorado registered voters has 63 out of 298 people affirming their right to vote, and most recipients are ignoring the May letters altogether.Last year, Gessler sent nearly 4,000 of these letters in an apparent attempt to intimidate voters and keep them from the polls. The good news is the legislature defeated legislation that would have given Gessler the power to strip the vote away from people who don't respond to his letter. So even though he can't really do anything about it, he's still sending the letters.
- Two Kansas men whose provisional ballots weren't counted in last year's election are challenging that state's voter ID law. The two men live in a retirement home, don't have drivers licenses and don't "own computers or the resources to apply for a free ID from the state."
- A new study from Florida found that Hispanic voters waited in the longest lines to vote in November.
The study, by political scientists at Dartmouth and the University of Florida, found that precincts with a greater proportion of Hispanic voters closed later on Nov. 6 than precincts with predominantly white voters. In some cases, blacks also had longer waits than whites but shorter than Hispanics. [...]
On average, 73 minutes passed between the 7 p.m. close of the polls and the time when the final voter in line cast his or her ballot in Miami-Dade. In Broward, which has a larger proportion of white voters than other large Florida counties, that average was 25 minutes, according to the study.
Tampa's Hillsborough County, which had been covered by the provision in the Voting Rights Act ruled unconstitutional, also had "unmistakable correlations between the racial and ethnic makeup of the precincts and closing times." The Voting Rights Act had required certain states and counties — including Monroe in the Florida Keys — to obtain prior authorization from the U.S. Department of Justice to change elections laws.