The “Voting Rights Act Amendment” Introduced in Congress

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[Screenshot image via campaignlegalcenter]

Yesterday, a bipartisan group of Members of Congress including Reps. James Sensenbrenner (R-WI) and John Conyers (D-MI) and Sen. Patrick Leahy (D-VT) introduced a new piece of legislation to amend the Voting Rights Act (VRA) to address constitutional concerns identified by the Supreme Court in the Shelby County case. Ari Berman of the Nation was the first with the details on the bill, and here is his summary:

1: The legislation draws a new coverage formula for Section 4, thereby resurrecting Section 5. States with five violations of federal law to their voting changes over the past fifteen years will have to submit future election changes for federal approval. This new formula would currently apply to Georgia, Louisiana, Mississippi and Texas. Local jurisdictions would be covered if they commit three or more violations or have one violation and “persistent, extremely low minority turnout” over the past fifteen years.

The formula is based on a rolling calendar, updated with a current fifteen-year time period to exempt states who are no longer discriminating or add new ones who are, creating a deterrent against future voting rights violations. It’s based on empirical conditions and current data, not geography or a fixed time period–which voting rights advocates hope will satisfy Chief Justice John Roberts should the new legislation be enacted and reach the Supreme Court …

[R]ulings against voter ID laws–like in Texas in 2012–will not count as a new violation. Voter ID laws can still be blocked by the Department of Justice or federal courts in the new states covered under Section 4, but that will not be included as one of the five violations needed to keep the state covered. This exemption for voter ID laws was written to win the support of House majority leader Eric Cantor and other Republicans.

2: The legislation strengthens Section 3 of the VRA, which has been described as the Act’s “secret weapon.” Under Section 3, jurisdictions not covered by Section 4 could be “bailed-in” to federal supervision, but plaintiffs had to show evidence of intentional voting discrimination, which is very difficult to do in court. Under the new Section 3 proposal, any violation of the VRA or federal voting rights law–whether intentional or not–can be grounds for a bail-in, which will make it far easier to cover new states. (One major caveat, again, is that court objections to voter ID laws that are not found to be intentionally discriminatory cannot be used as grounds for “bail-in” under Section 3.)

3: The legislation mandates that jurisdictions in all fifty states have to provide notice in the local media and online of any election procedures related to redistricting changes within 180 days of 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 forty-six states not subject to Sections 4 and 5. [I covered this back in December here.]

4: The legislation makes it easier to seek a preliminary injunction against a potentially discriminatory voting law. 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. There will be a preliminary injunction hearing on North Carolina’s voting law in July 2014, before the full trial takes place July 2015.

5: The legislation reaffirms that the attorney general can send federal observers to monitor elections in states subject to Section 4 and expands the AG’s authority to send observers to jurisdictions with a history of discriminating against language minority groups, which includes parts of twenty-five states.

This proposed bill – which will be introduced in both houses – is the latest effort to revise (and revive) the VRA in the wake of Shelby County. Prospects for passage are mixed; while there appears to be some bipartisan House support, it is not yet a sure thing and at introduction the Senate version had no Republican original co-sponsors. Still, the initial draft of the bill does reflect an effort at compromise between the parties (as evidenced by the exclusion of voter ID cases from triggering events) as well as an attempt to resolve the constitutional issues identified by the Court last summer.

It will be interesting to see if the political environment has changed on issues like this. For whatever reason, voting rights legislation has enjoyed overwhelming support in Congress, at least recently; what’s unclear is whether the Shelby case has given opponents of the VRA sufficient cover to vote against efforts to expand it.

This is, undoubtedly, a big deal. Stay tuned.

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