January 17, 2014

Bipartisan Amendments to Voting Rights Act Introduced in Congress

Jesse Grauman, Shelby County v. Holder, voter ID laws, Voting Rights Amendment Act of 2014

Yesterday, a bipartisan, bicameral group of legislators introduced the Voting Rights Amendment Act of 2014, legislation sponsored by Rep. Jim Sensenbrenner (R-Wis.) and House Judiciary Committee Ranking Member John Conyers Jr. (D-Mich.) in the House and by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) in the Senate.  The bill represents a much-needed and significant first step in the effort to respond to the void left by the Supreme Court’s decision seven months ago in Shelby County v. Holder that invalidated a key portion of the Voting Rights Act of 1965 (“VRA”).
Before Shelby, Section 5 of the VRA required certain jurisdictions with a documented history of racial discrimination in voting to submit any changes in voting laws and procedures to either the Department of Justice (“DOJ”) or a three-judge panel of the United States District Court for the District of Columbia for review, a process known as “preclearance.”  Most voting changes in these “covered jurisdictions” were approved quickly and routinely, but practices that were found by DOJ or the court to be racially discriminatory were blocked from taking effect.  However, in Shelby, a five-justice majority invalidated the coverage formula used to determine which jurisdictions were covered by Section 5, finding that it was outdated and insufficiently tailored to the existence of racial discrimination in voting today.  The Court took this unprecedented step even though Congress had overwhelmingly voiced its determination – by votes of 98-0 in the Senate and 390-33 in the House – that the coverage formula was appropriately responsive to continued racial discrimination in voting in the covered jurisdictions.
As a result of the Court’s decision, Section 5 was effectively nullified.  The weeks and months following Shelby confirmed that while our Nation has made great strides towards addressing racial discrimination in voting, such discrimination has not been eradicated, as several previously covered states and jurisdictions swiftly enacted laws that would have been subject to preclearance – and potentially blocked – prior to Shelby.

The Voting Rights Amendment Act seeks to address the gaps left by Shelby in several ways:
  • Dynamic, modern, and responsive coverage formula: In response to the Court’s mandate that any coverage formula must be based on “current conditions,” the Voting Rights Amendment Act would enact a new formula that would be based on recent history and updated on an annual basis.  The “rolling” formula would require preclearance in any jurisdiction with a pattern of discrimination in voting rights over the past 15 years.  A covered jurisdiction would remain covered for 10 years after its most recent violation, but could also seek to obtain a “bailout” from coverage beforehand.  Thus, covered jurisdictions that maintain fair voting practices would automatically be removed from coverage, while any non-covered jurisdictions that engage in patterns of discrimination over time would be placed into coverage.

  • Enhanced “bail-in” to address discriminatory voting practices: The Voting Rights Amendment Act would also amend the “bail-in” provision of Section 3 of the VRA, which enables a court to bring a jurisdiction into Section 5 coverage.  Previously, Section 3 only permitted “bail-in” if a jurisdiction was found to have violated the Constitution.  The new legislation would also permit a court to order “bail-in” as a remedy if it finds that the jurisdiction violated the Voting Rights Act itself.  This permits courts to address all forms of voter discrimination, not just discrimination that is found to directly violate the Constitution.

  • Availability of preliminary relief where needed: One of the most critical features of preclearance was that in covered jurisdictions, changes in voting were reviewed by DOJ or a court before they took effect.  This mechanism was crucial because once a discriminatory practice is in effect during an election, its impact is virtually impossible to undo, even if a court ultimately finds the practice to be discriminatory after lengthy and costly litigation.  The Voting Rights Amendment Act would respond to Shelby by giving courts increased flexibility to preliminarily enjoin potentially discriminatory voting changes, especially when a change is particularly suspect – for example, if it was enacted right before an election or if it replaces a procedure or practice that was adopted in response to a past discrimination lawsuit. 

  • Greater transparency: An often-overlooked aspect of Section 5 is that the preclearance process provided public notice of proposed voting changes in covered jurisdictions.  Such notice was particularly critical for changes by local jurisdictions that otherwise escape public scrutiny.  The Voting Rights Amendment Act would require states and local jurisdictions nationwide to publicize certain changes to voting practices to ensure that voters and communities are informed of those changes.

  • Federal observers to monitor potential discrimination: The VRA has long permitted federal observers to monitor potential racial discrimination in covered jurisdictions.  The Voting Rights Amendment Act would also allow such observers to be assigned to jurisdictions in counties that are required to provide election materials in more than one language to ensure compliance with these requirements.

To be sure, the legislation is not perfect; for example, it unnecessarily exempts Voter ID laws from the types of practices that, if found to have a discriminatory effect, can subject a jurisdiction to preclearance, and it could be improved by requiring preclearance, regardless of geographic location, for certain specific voting practices that are known to have indicia of discrimination.  However, in an area of law that often lends itself to political polarization, it is both noteworthy and encouraging that the Voting Rights Amendment Act is sponsored by a bipartisan coalition of legislators.  Its introduction hopefully underscores that members of both parties recognize that discrimination in voting is antithetical to our Constitution and our values, and that each and every American’s fundamental right to vote must be protected.