On Thursday, Reps. Jim Sensenbrenner (R-WI) and John Conyers (D-MI) and Sen. Patrick Leahy (D-VT) plan to introduce bipartisan legislation that will undo much of the damage done by the Roberts Court’s 5-4 decision to neuter a key prong of the Voting Rights Act. Since its enactment in 1965, the Voting Rights Act required states with a record of racial voter suppression to “preclear” any new voting laws with the Department of Justice or a federal court in D.C. The Supreme Court’s decision last June struck down the formula that determined which states are subject to this preclearance regime, effectively halting federal supervision of many states that were actively engaged in voter suppression.
Prior to the Roberts Court’s decision, nine states were subject in their entirety to the preclearance requirement, and parts of six others were also covered. Notably, much of the state of North Carolina, which recently enacted the most aggressive voter suppression law in the nation, was covered under the old formula.
The bipartisan fix to the Roberts Court’s decision creates a new formula that would initially lead to far fewer states being covered by preclearance. As the Nation’s Ari Berman explains, the new formula requires preclearance in states “with five violations of federal law to their voting changes over the past fifteen years,” and to localities “if they commit three or more violations or have one violation and ‘persistent, extremely low minority turnout’ over the past fifteen years.” The upshot of this new formula is that only four states, Georgia, Louisiana, Mississippi and Texas will immediately be subject to preclearance in their entirety. Notably, none of these four states are North Carolina, with its comprehensive voter suppression law.
The other piece of bad news is that the bipartisan bill creates a special carve-out for voter ID laws. Voter ID, which requires voters to show a photo ID before they can cast a ballot, are one of the most common voter suppression tactics in the country. Though their proponents claim that they are necessary to prevent voter fraud at the polls, such fraud is virtually non-existent. Indeed, a Wisconsin study found that just 0.00023 percent of votes are the product of in-person voter fraud, so a person is more likely to be struck by lightning than to commit fraud at the polls.
What voter ID does accomplish that it removes many low-income, student and minority voters from the electorate, all of which are groups that tend to favor Democrats over Republicans. Yet, despite their impact on racial minorities, the bipartisan voting bill will not count voter ID laws as a violation of federal voting rights that that can be used to subject a state to preclearance. Berman reports that this special carve out for these racially discriminatory laws was necessary to secure the support of House Majority Leader Eric Cantor and some other Republicans.
It should be noted, however, that while voter ID laws cannot be used to bring a state under the preclearance requirement, the bipartisan bill will allow them to be blocked in states that are already subject to preclearance — either under the new formula or under another provision that will be discussed shortly. In this sense, the bipartisan bill appears to be a compromise between a radical proposal hinted at by Sen. Chuck Grassley (R-IA) — that voter ID be exempt from the Voting Rights Act entirely — and the pre-Roberts Court status quo. Nevertheless, there is a risk that the bipartisan voting bill will allow voter ID laws in some states to be grandfathered in if they are enacted during a period when the state is not subject to preclearance.
So that’s the bad news for supporters of voting rights. The biggest piece of good news is that the law does not just create a new formula that will immediately subject a handful of states to preclearance, it also strengthens the ability of courts to bring states and localities engaged in voter discrimination under the preclearance umbrella. Currently, the Justice Department is suing Texas and North Carolina under Section 3 of the Voting Rights Act, a provision which allows a state to be made subject to preclearance if a court finds “violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision.”
The problem with Section 3, however, is that it is widely understood to require the Justice Department to prove that Texas and North Carolina enacted voter suppression laws with the intent of disenfranchising voters because of their race. Proving intent is a challenge in any context — neither judges nor attorneys are mind readers — so DOJ faces a difficult road ahead under current law. The bipartisan bill will strengthen Section 3 so that “any violation of the VRA or federal voting rights law – whether intentional or not – can be grounds for a bail-in.” This is a really big deal. Big enough that it probably justifies paying the high price Cantor and others have demanded in order to revive the Voting Rights Act.
So on balance, this is a good bill for voting rights. It will improve the baseline significantly from the post-Roberts Court status quo, and will make it much, much easier to hold states like North Carolina accountable for voter suppression. Nevertheless, two caveats are in order.
The first is that anyone who remembers what happened after the Senate passed a bipartisan immigration bill knows that it is always dangerous to bet on progressive legislation surviving contact with the GOP-controlled House. Majority Leader Cantor’s apparent support for the bill is a good sign that it may pass, but it remains to be seen whether that support can be relied upon or whether he can deliver the votes necessary to pass the bill into law.
The second is that there is always some risk that the very conservative Roberts Court will object to this bill as well. The Court’s June decision gutting the Voting Rights Act includes some language suggesting that 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.” If the Roberts Court applies such a standard in future cases, not even North Carolina is likely to be susceptible to preclearance — though it remains to be seen whether the five conservative justices would actually go this far.
In other words, the biggest challenge facing voting rights advocates is that they must overcome two lawmaking bodies controlled by very conservative officials — the House of Representatives and the Supreme Court of the United States. Should they clear these hurdles, however, this bipartisan proposal would go a long way towards fixing the damage caused by the Roberts Court last June, and its amendments to Section 3 would actually make American voting rights law more robust in some ways than it was before Chief Justice Roberts got his hands on it.