Will Congress Restore the Voting Rights Act?

While this year marks the 50th anniversary of the landmark Civil Rights Act, it also marks the first anniversary of Shelby County v. Holder, in which the Supreme Court struck a key portion of the Voting Rights Act (VRA) of 1965.  Congress passed the VRA to increase African American voter turnout, especially in the South.  Section 5 of the VRA gave the Justice Department and federal courts supervisory power in advance of any changes in voting laws in 11 states and certain counties within 4 others, a system known as “preclearance.”  Section 4(b) specified the formula: States warranted this special scrutiny if fewer than 40% of eligible voters were registered or if they still used some sort of “test” such as literacy to suppress citizens from registering to vote.

In Shelby County,  a 5:4 majority found Sec. 4(b)’s formula unconstitutional because it still relied on 40-year old data that did not reflect the progress states had made.  Chief Justice John Roberts opined, “History did not end in 1965.  Our country has changed…While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.” Although preclearance states insisted that Sec 4(b) was intended to be temporary, Congress routinely reauthorized it with huge bipartisan majorities in both chambers and little fanfare, most recently in 2006. Members likely shared the view that Justice Ruth Bader Ginsburg expressed in her dissenting opinion: “Throwing our preclearance when it has worked and continues to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Within weeks of the Court’s decision, several state legislatures were enacting restrictive laws.  Since the last midterm election in 2010, 22 states have imposed new restrictions such as voter ID requirements, eliminating same-day registration, shortening the period for early voting before election day, and ending provisional ballots.  Lawsuits are pending in 7 states, but the Justice

Department must now rely on Sec. 2 of the VRA, which allows suits over voting procedures that “purposely discriminate”—a higher hurdle to clear and one that consumes more of Justice’s resources because it must be addressed on a case-by-case basis.  (It’s worth noting that 16 states have moved in the opposite direction since 2012, increasing access to the ballot by introducing online registration and early voting.)

Politics complicates the issue even further.  Of the 22 states with new restrictions, 18 passed through Republican-controlled bodies; of the 11 with the highest African American turnout, 7 have new restrictions; of the 12 with the largest Hispanic population growth, 9 have new restrictions; and of the 15 states previously covered by Sec. 5, 9 have new restrictions.  Studies consistently show that minorities make much greater use of same-day registration and early voting, lending credence to the argument that while the ostensible purpose of the new laws is to combat voter fraud, the actual effect is to decrease participation among traditionally Democratic voters.

A few months after Shelby County, Sen. Patrick Leahy (D-VT), Rep. Jim Sensenbrenner (R-WI), and Rep. John Conyers (D-MI) accepted the Chief Justice’s invitation to “draft another formula based on current conditions.”  Under their plan, states with 5 violations of constitutional or federal statutory voting protections within the last 15 years would be subject to preclearance, making it applicable to Texas, Mississippi, Louisiana, and Georgia.  Known as the Voting Rights Amendment Act (VRAA), the bill specifically excludes voter ID laws—a key concession designed to win support from Republicans.  In Leahy’s words, the VRAA “includes strong, nationwide anti-discrimination protections and continues to permit states to enact reasonable voter ID laws.”

The Senate scheduled a hearing on the VRAA exactly one year after Shelby County  was announced. The bill enjoys support from many senators, including some from previously covered states who approve that the bill would apply nationwide rather than singling out just their states.  In the House, civil rights icon Rep. John Lewis (D-GA) has given his blessing to the VRAA, noting that it isn’t perfect but is “a good compromise.” Minority Leader Pelosi signed on, saying “While it’s not the bill everyone will love, it is bipartisan, it is progress, and it is worthy of support.”

Last year, Lewis took several members of both parties on a civil rights pilgrimage to Selma, Alabama, as he often does.  Among them was Rep. Eric Cantor (R-VA), the recently defeated Majority Leader who initially seemed open to the VRAA, and Rep. Kevin McCarthy (R-CA) who will replace Cantor on the leadership ladder.  But with the notable exception of Sensenbrenner, few Republicans have shown much interest in the bill.  The biggest obstacle to the bill in the House is Cantor’s fellow Virginian, Judiciary Chairman Bob Goodlatte (R-VA), who has not scheduled a single hearing despite the urging of numerous civil rights organizations.  Ironically, Goodlatte’s intransigence virtually guarantees a larger role for the judicial branch in ruling on state legislation—hardly the outcome his Republican colleagues intent on deferring to state legislatures had in mind.

Susan Sullivan Lagon is a Nonresident Senior Fellow at the Government Affairs Institute

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