Two representatives and a senator introduced legislation
Thursday to repair some of the damage the Supreme Court delivered to the Voting Rights Act of 1965 in its ruling last June. Though not as strong as it ought to be, if passed the bill would restore the federal government's authority to "pre-clear" changes in voting procedures in a few of the nine states that were covered before the Court shredded the VRA's key enforcement provision in its Shelby County v. Holder
The legislation, the Voting Rights Amendment Act of 2014, was introduced in the House by Democratic Rep. John Conyers of Michigan and Republican Rep. Jim Sensenbrenner of Wisconsin, with an identical bill introduced in the Senate by Democrat Patrick Leahy of Vermont. Leahy said:
Through months of negotiation and compromise, Congressmen Sensenbrenner and Conyers and I have agreed on a bipartisan and bicameral proposal to restore the protections of the Voting Rights Act that were weakened by the Supreme Court's decision last summer. Our sole focus throughout this entire process was to ensure that no American would be denied his or her constitutional right to vote because of discrimination on the basis of race or color. We believe that this is a strong bipartisan bill that accomplishes this goal and that every member of Congress can support.
As with any bill supported by Democrats, the question is whether the bill will be able to make it through the Republican-controlled House. And then there's the question of whether the Supreme Court will object on the same grounds as it did in Shelby
, a ruling which, as Ian Millhiser has written,
contained language saying "any
preclearance formula is unconstitutional unless it is limited to states engaged in the kind of ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965.”
Although the bill is being touted as bipartisan and has attracted the support of House Majority Leader Eric Cantor, there is some question about how many Republicans it will ultimately attract. Sensenbrenner, a long-time backer of the VRA, is looked at skeptically by conservatives in his own party because he has broken ranks on some votes. There is also fear on the GOP side of the aisle that Democrats might use a revamped VRA for election advantages this year.
Some on the left are critical because the legislation is weaker than what they want. But Democratic Rep. John Lewis of Georgia, who literally risked his life in the 1960s to defeat Jim Crow laws that kept African Americans from voting, said Wednesday: "It's not all that we want. It's not a perfect bill. But it's a good bill."
Read more about the bill below the fold.
The American Civil Liberties Union agreed:
"While not perfect, today’s bill successfully answers Chief Justice Roberts’ invitation to Congress in Shelby to modernize the Voting Rights Act," said Deborah J. Vagins, ACLU senior legislative counsel. "The bill includes commonsense updates to a law that has protected the fundamental right to vote for American citizens for nearly 50 years. While it does not fix everything that was lost in Shelby, we are pleased to see a bipartisan bill that contains a set of protections that are flexible, forward-looking, and written to capture recent discrimination and stop discriminatory changes before elections take place. We will continue to work for improvements in the bill and urge Congress to pass the bill swiftly. Congress must do all in its power to ensure that Americans are treated fairly at the ballot box."
The Voting Rights Amendment Act is, in fact, the best chance for a fix in the immediate future. But if it does pass, the fix will need a fix when the balance of power in Congress has shifted.
At The Nation, Ari Berman, who has written extensively about voting suppression and the successful effort to gut the Voting Rights Act has the rundown on the specifics.
The Court wrecked the VRA by overturning Section 4, which set forth the nine states and parts of others with a history of voter discrimination that would not be allowed to make changes in voting procedures without first getting them "pre-cleared" under Section 5. Without Section 4, Section 5 became a dead letter.
The nine states were Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. Parts of California, Florida, Michigan, New York, North Carolina and South Dakota were also covered. Here's my condensed version of Berman's take:
• A new coverage formula has been written for Section 4 that revives Section 5. Any state that has violated federal law with voting changes during the past 15 years must get future changes pre-cleared. That would cover Georgia, Louisiana, Mississippi and Texas. Local jurisdictions that commit three or more violations or one violation with “persistent, extremely low minority turnout” during the past 15 years would also be covered. The law includes a "rolling calendar" that updates the past 15 years so that states with no new violations will eventually be exempt from pre-clearance. Unlike under the old formula, this one is based not on geography but on behavior.
• The bill not only does not cover Alabama and other mostly Southern states that sparked the original Voting Rights Act, and it doesn't apply to states like Ohio, Pennsylvania and Wisconsin, which have enacted new voting restrictions. Moreover, voter ID laws are treated less stringently and will not be counted among the five violations that can keep a state covered. Berman notes that this "exemption for voter ID laws was written to win the support of House Majority Leader Eric Cantor and other Republicans."
• Section 3 of the VRA is strengthened. Under that section, states or parts of states not covered by Section 4 could be “bailed-in” to federal oversight. To do so, however, plaintiffs had to leap a high bar—showing intentional voting discrimination. The new proposal allows for bail-ins regardless of whether the discrimination was intentional or not.
• The legislation requires authorities nationwide to provide advance notice of any changed election procedures regarding redistricting, changes made 120 days before a federal election and the moving of a polling place. "This will make it easier for citizens to identify potentially harmful voting changes in the 46 states not subject to Sections 4 and 5."
• Preliminary injunctions against voting laws that are seen as possibly discriminatory voting law will be easier to obtain. "Plaintiffs will now only have to show that the hardship to them outweighs the hardship to the state if a law is blocked in court pending a full trial."
• The attorney general will still be authorized to send federal observers to monitor elections in states covered by Section 4 and to jurisdictions that have in the past discriminated against groups who do not speak English. That covers parts of 25 states.
The language coverage in the bill is not seen as good enough by the ACLU and by many minority groups. Billy House writes:
The emerging disagreement between some minority groups is whether Democrats should push for additional language to incorporate what is known as a "known practices" coverage formula for federal approval, a broader approach than used in the past.
Endorsed by Latino, Asian-American, Pacific Islander, Native Hawaiian, and Native American organizations, the mechanism would tie federal oversight not just to certain geographical areas and past practices, but to particular practices wherever they occur. That would cover more of the nation's most rapidly growing racial-, ethnic-, and language-minority communities.
House reports that African Americans in Congress tend to be supportive of the bill as is and are concerned that any move to stiffen it could reduce the number of Republicans who back it.