Congress kicked off an effort to restore the Voting Rights Act of 1965 with a series of Capitol Hill hearings this week, less than a month after the U.S. Supreme Court severely weakened the law by striking down a key anti-discrimination provision.
No legislation has been proposed yet. But senators and a leading representative spoke during a Senate Judiciary Committee hearing on Wednesday about their appetite to fix the now-unconstitutional Section 4 formula, which set out when a state or local jurisdiction warrants special scrutiny before it can implement electoral changes.
Representative Jim Sensenbrenner (R-Wis.), who led the House effort to reauthorize the VRA in 2006, testified that he is committed to crafting a constitutional response to the Shelby County v. Holder decision that “will last a long time.”
Preserving the VRA – whether with a new formula for Section 4 or other change – is necessary to stop discriminatory practices before they affect elections, Sensenbrenner said. But he still acknowledged the difficult political atmosphere in Congress for passing a fix.
“Sometimes the differences between the House and the Senate are the difference between here and the moon,” he said. “Hopefully, not on this one.”
Senator Patrick Leahy (D-Vt.), the committee’s chairman, quickly agreed, and said he wanted to move a fix sometime in the fall, after the August break. “I hope that both parties, both bodies will (work together) on this issue,” Leahy said. “You protect the right to vote for everybody.”
Sensenbrenner will lead a House hearing Thursday on the VRA and the Supreme Court’s decision, although it was not immediately clear whether House leaders would take up legislation this year.
The Supreme Court in its 5-4 decision voided Section 4 of the act, which was the predicate to the Justice Department's Section 5 authority to preview proposed changes in suspect jurisdictions, called preclearance. Chief Justice John Roberts Jr., writing for the majority, said Section 4 was "unconstitutional in light of current conditions." In other words, the chief justice said that times have changed.
Without a fix from Congress, the decision means the Civil Rights Division loses that preclearance authority, which legal experts have called an incredibly efficient way to deal with discrimination.
Senator Chuck Grassley (R-Iowa), the ranking member of the Senate committee, said Tuesday that he was looking forward to seeing a proposal, and said there was no need for cynicism and defeatism when it came to the likelihood of a fix.
“I disagree with a member of this committee across the aisle who said, ‘As long as Republicans have a majority in the House and Democrats don’t have 60 votes in the Senate, there will be no preclearance,’ ” Grassley said.
“We could cover the whole country. We could identify jurisdictions engaging in discrimination in the 21st century and where section 2 is inadequate. There may be other options,” Grassley said. “I look forward to seeing what the majority ultimately proposes. I certainly understand why there is no proposal yet.”
However, Jones Day partner Michael Carvin told the Senate committee Wednesday that it would be “very difficult, if not impossible” for Congress to devise a coverage formula that accurately identifies which jurisdictions should be covered.
Carvin also echoed the Roberts’ writing in the Supreme Court’s majority ruling, telling the committee that Congress made a mistake in 2006 by collecting 15,000 pages of evidence about voting rights issues but not using it to update Section 4 to identify which jurisdictions needed to be covered.
Instead, Congress relied on old information from 1968 and 1972 elections and did not show a cognizable difference between covered and non-covered jurisdictions, Carvin testified.
Carvin said Section 2 of the VRA is adequate to enforce voting rights, and there is no need to fix the formula in Section 4 and therefore extend Section 5. “Given the clear success of Section 2’s ‘case-by-case litigation,’ Section 5 will rarely, if ever, be needed in any jurisdiction, much less a significant number of political subdivisions or states,” Carvin wrote in his submitted testimony.
Contact Todd Ruger at email@example.com.