Bob Bauer will be presenting these remarks at the ACS Convention. It begins:

On the right today, there is some distress over components of the negotiated renewal of the Voting Rights Act, the claim being that the preservation of the “trigger” or the 25 year renewal period are unfair to covered states or lacking in “modernity.” Yet both the left and right seem comfortable with the provision effecting a “partial reversal” of the Supreme Court’s decision in Georgia v. Ashcroft. On this point, I think progressives are mistaken. For while the renewal overall makes sense, it is better enacted without this additional feature. In fact, Georgia v. Ashcroft–not its invalidation, partial or otherwise–fits well within the preserved core of the VRA as contemplated under the negotiated agreement now before the Congress.

Bob’s paper is very interesting, especially read against the uncertainty of the language that the draft bill uses to assure the partial reversal of Ashcroft. The bill says that the Supreme Court in Georgia v. Ashcroft “misconstrued Congress’ original intent in enacting the Voting Rights Act of 1965 and narrowed the protections afforded by section 5 of such Act.” Later the bill states that any voting qualifications etc. “that has the purpose of or will have the effect of diminishing the ability of any citizens of the U.S.” to “elect their preferred candidates of choice” {note: language corrected 6/17 from an earlier error] violates section 5. Bob notes (fn. 4) that the section lacks clarity.
There are two interesting questions to ask regarding this language: (1) what would courts interpret the language to mean? and (2) why would “the deal” include a provision lacking in clarity?
On the first point, we have already seen some early attempts to give the meaning certain content in particular directions. Compare, for example, the discussion beginning on page 68 of the Final House Report with Part III (beginning on page 7) of Nate Persily’s supplemental testimony before the Senate Judiciary Committee. There’s a certain parallel here with the debate in 1982 over the meaning of section 2, which ultimately got “clarified” when Justice Brennan crafted his three-part threshold test, followed by a “totality of the circumstances” test, in Gingles.
On the second question, sometimes lack of clarity in legislation is necessary to keep a deal together. Perhaps the section has not been drafted more clearly (for example, to tell us how the courts should treat influence district claims under section 5) because to do so would break up the coalition between the Republican leadership and the CBC in the House.
In any case, we can be sure that if the VRA renewal passes in this form, there will be plenty of work for lawyers urging various interpretations on the courts of this provision, and room for a political DOJ (Democrat or Republican) to read it in ways that might suit the Administration’s political needs.