As mentioned in a prior post, a lot of good discussion came out of the recent Brookings conference on the aftermath of the Court’s decision on the Voting Rights Act. With respect to the prospects of any kind of legislation that might be able to attract bipartisan support in Congress, I thought it worth quoting the perspective of Mark Braden, whose credentials as a redistricting and election-law expert for the Republican Party I described earlier.
Mark suggested that focusing Sections 4/5 on access to the ballot box, by taking redistricting out of the pre-clearance regime and leaving that to be handled by ordinary Section 2 litigation, would open up greater opportunity for Republican support of post-Shelby County VRA reform. I don’t know how much Mark speaks for Republicans in Congress, or whether Democrats would be willing to accept any compromise along these lines. But I thought Mark’s comments were worth reporting (without endorsing) in full:
MR. BRADEN: . . . I don’t see any difficulty whatsoever in drawing a trigger standard that would be Constitutional. I do see a huge problem with drawing one that would be Constitutional and would, in fact, pass Congress. I think the question here is what can pass Congress. The starting point, I would suggest to you, is going back — my own view of the world, obviously — going back and bifurcating what we’re talking about here that Section 5 deals with.
There’s a big piece which is reapportionment, redistricting, and then just let me call it the election administration piece. If you fill the need to not bifurcate and have to come up with a system that would get through Congress that would deal with both those pieces, good luck. I don’t see how that’s going to happen, but if you were to bifurcate it, I think there’s a possibility that you could. You have to deal with Abigail. You have to realize that if you don’t break out redistricting, then if you break out redistricting, suddenly you’ve freed up a huge portion of the Republican caucus who is opposed to what they would view as racial quotas and redistricting based upon race, even though, of course, redistricting based upon race has been vital to the creation of the Republican party itself. I mean, there’s no question about that throughout the ‘80s, ‘90s. People that were working with me was the minority community in the South, and that’s what permitted the Republican party to become the majority party in those states at the local and legislative level.
Okay, but the whole notion of creating those majority minority districts is very difficult with most of the Republican caucus in the House of Representatives. So, if you want to break that piece off and say, okay, we’re not going to have any effort to replace Section 5 is going to deal with redistricting. We’ll depend upon Section 2 or something else to deal with redistricting litigation. But we’re going to deal with — what I heard in a variety of discussions here — things that are really important going forward. First of all, with the exception of a few odds and ends, everything in redistricting is a long way from now, 2012.
So, if you want to deal with what you perceive to be problems in the near, near term, which are election administration problems, you break those out, you’ve suddenly freed up a lot of Republicans who wouldn’t consider this because they say this is based upon racial-based redistricting. If you take that piece out, then all we’re talking about is election administration practices, whether or not they’re discriminatory.
No matter what, we have different views about early voting and voter ID or whatever, but at least intellectually the caucus is going to vote rhetorically, and I would suggest intellectually, want to take the position that they’re not in favor of anything that discriminates, any type of election procedure that discriminates against a minority community. Now, we’re going to have lots of arguments as to what that means, but at least rhetorically they will take that position, and I believe actually take that position.
So, if you’re talking about creating a system that might permit some type of pre-approval or easier access to challenging election administration pieces, that’s doable. If you’re doing the whole thing, that’s not politically doable, period.