Congress and the U.S. Department of Justice last week began an effort to restore voting rights enforcement in the aftermath of a U.S. Supreme Court decision that gutted a key provision of the historic law.
Senate Democrats and House Repub­licans held hearings to explore how Congress might fix the Voting Rights Act of 1965 and its newly unconstitutional Section 4, which set out the formula that determined when a state or local jurisdiction needed federal or court approval before implementing electoral changes.
Attorney General Eric Holder Jr. announced a shift in resources in the Civil Rights Division to focus on elements of the law that remained untouched by the high court's ruling in June.
"I believe we must regard it not as a defeat, but as a rare and historic opportunity: for Congress to consider new legis­lation restoring and even strengthening modern voting protections — in a manner that's consistent with the record established by one of the most effective civil rights laws in American history," Holder said during a July 16 address to the NAACP in Orlando, Fla.
Still, it remains unclear whether a sharply divided Congress has the appetite to pass legislation, or whether the Supreme Court's decision even allows for a legal patch that can pass constitutional muster. One thing is certain: Without any changes, voting rights enforcement won't be as efficient as it once was, lawyers who track civil rights laws said.
So far, no specific legislation has been proposed. Representative Jim Sensen­brenner (R-Wis.), who led the House effort during the Voting Rights Act's last reauthorization in 2006, said he is committed to crafting a constitutional response to the Shelby County v. Holder decision that "will last a long time."
Preserving the voting rights law — whether with a new formula for Section 4 or other change — is necessary to stop discriminatory practices before they affect elections, Sensenbrenner said on Capitol Hill. Still, he recognized that the political climate in Congress doesn't bode well for passing any fix. "Sometimes the differences between the House and the Senate are the difference between here and the moon," he said during a Senate Judiciary Committee hearing. "Hopefully, not on this one."
Senator Patrick Leahy (D-Vt.), the committee's chairman, said he wanted to move on a legislative fix 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."
PRECLEARANCE AUTHORITY LOST
The Supreme Court in its 5-4 decision in Shelby County voided Section 4 of the Voting Rights Act, which was the predicate to the Justice Department's Section 5 authority to preview proposed changes in suspect jurisdictions in a process called "preclearance." Chief Justice John Roberts Jr., writing for the majority, said Section 4 was "unconstitutional in light of current conditions."
"The day of the Supreme Court decision broke my heart. It made me want to cry," Representative John Lewis (D-Ga.), a civil rights pioneer, testified before the Senate panel. "I felt like saying come, come and walk in the shoes of people who tried to register, tried to vote, but did not live to see the passing of the Voting Rights Act."
Without a fix from Congress, the decision means the Civil Rights Division loses its preclearance authority and must now depend on Section 2 of the law, which legal experts describe as an inefficient way to deal with discrimination. That section requires DOJ lawyers to go out and investigate allegations of any electoral discrimination before filing any suit.
Senator Chuck Grassley (R-Iowa), the ranking member of the Senate Judiciary Committee, said last week he was looking forward to seeing a proposal to amend the law. "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.
Holder, at his widely covered speech in Florida, urged Congress to use the Supreme Court decision as a reason to strengthen voting protections, which in the past have received broad bipartisan support in Washington.
He stepped up criticism of the high court's ruling, telling the NAACP convention audience that it was a "deeply disappointing and flawed decision" that "dealt a serious setback to the cause of voting rights."
Citing recent episodes in Texas and South Carolina, Holder told the crowd that discrimination still exists and "the struggle for voting rights cannot be relegated to the pages of history."
For the first time publicly, Holder confirmed the Justice Department would now turn to Section 2 for enforcement, "which prohibits voting discrimination based on race, color, or language — in addition to other federal voting rights laws."
Rather than state and local jurisdictions bringing voting changes to the Justice Department or a court for approval, however, now they can go ahead and make the changes. The Justice Department would then have to rely on time-consuming and expensive litigation to enforce the law, potentially only after election results are in.
Jones Day partner Michael Carvin told the Senate committee last week that Holder's new approach to Section 2 enforcement is powerful enough and Section 5 preclearance is no longer needed. Carvin, who practices in constitutional and civil rights law, testified it would be "very difficult, if not impossible" for Congress to devise a coverage formula that accurately identifies which jurisdictions should be covered.
Justin Levitt, a professor at Loyola Law School, Los Angeles, said during the same hearing that the Supreme Court and Congress have both recognized that responsive voting rights litigation is "slow and expensive."
A congressional fix of the Voting Rights Act, Levitt said, could focus on replicating the role of the preclearance in another way, making enforcement litigation cheaper and less burdensome, or enhancing judicial management of an individualized preclearance procedure.
"It may be that some combination of the above is most appropriate to meet the need," Levitt said. "But what is clear to pragmatists above all is that there is a need, and that the need must be met."
Contact Todd Ruger at email@example.com.