Initial Thoughts on the Proposed Amendments to the Voting Rights Act

I have now had a chance to review the text the Voting Rights Amendments Act of 2014 introduced today by Representatives Sensenbrenner and Conyers (with parallel legislation being introduced by Senator Leahy in the Senate). I believe parts of the VRAA are likely constitutional (including the new coverage formula), parts are likely unconstitutional (new bail in), and most of it is sensible policy.  But I am very pessimistic about the legislation passing out of the House. Ironically, I think if this were the bill introduced in 2006 to amend the VRA, it would  not only have passed both Houses of Congress and become law, the Supreme Court would have been very likely to uphold the measure as constitutional despite its constitutional problems.  I’ll address each point in turn.  (Ari Berman offers a summary of the major provisions, which I won’t repeat here.)

1. The constitutional parts. There is lots of good and constitutional stuff in this bill. The idea of requiring jurisdictions making election changes to publicize them on the Internet is a terrific idea, and allows for timely lawsuits if necessary to combat draconian voting changes throughout the country. Disclosure is an unmitigated good here, and it is hard to see any constitutional objection. Similarly, making it easier to get preliminary injunctions in section 2 cases makes a lot of sense, and clears procedural hurdles without infringing on state sovereignty.

2. New coverage formula likely constitutional. The new coverage formula pegged to relatively recent voting rights violation is likely, but not certain, to be held constitutional if enacted. The benefit of this new formula is that it is tied to current conditions—looking at recent voting rights violations, and in the case of subdivisions, recent minority voter turnout statistics. This tends to defeat the Shelby County holding that requires under principles of “equal sovereignty” of states that any preclearance regime be tied to current conditions. (For my critique of these principles, see  Shelby County and the Illusion of Minimalism, William and Mary Bill of Rights J. (forthcoming 2014) (draft available).)  The one caveat is that counted among the kinds of voting rights violations which could trigger the renewed preclearance are section 2 violations and also section 5 violations before the Shelby County decision. This means that preclearance would be imposed on jurisdictions for conduct which, while a statutory violation, is not a constitutional violation. The Roberts Court could see this as too much of an infringement on state sovereignty (and beyond Congress’s power to impose a “congruent and proportional remedy” for constitutional violations), because it puts states to the strong medicine of preclearance without proof of unconstitutional conduct.  [Because Rep. Sensenbrenner thinks voter id laws are just fine, suits based on voter id would not count toward the new coverage formula.]

3. New bail-in procedures likely unconstitutional. The current version of the VRA provides that jurisdictions which engage in intentional racial discrimination in voting can, at the discretion of a court, be put back under federal preclearance for up to 10 years. The VRAA would expand the bail-in rules to allow for bail-in even when the jurisdiction has engaged in voting rights violations which are based on discriminatory effects, and not intentional conduct. This was essentially Travis Crum’s recent proposal. For the same reasons raised in my last point, but more clearly in relation to bail-in, I am quite skeptical the current Court would allow states or political subdivisions to be bailed back into coverage based upon conduct which has not been found to be unconstitutional. Doing so would exceed Congress’s power to enforce the 14th and 15th amendment and violate principles of state sovereignty by being not congruent and proportional to the extent of state violations. To be clear, that’s not how would read the Constitution.  This is instead is a predictive judgment about how the current Roberts Court would decide these congressional power questions.  As a matter of policy, I really like the VRAA.  I’m just not convinced 5 Justices would uphold this part. [Franita Tolson goes further and argues that the revision to section 3 could tear down section 2 as well.]

4. The politics and path dependence.  Despite these constitutional issues, I would bet that the VRAA would have passed in 2006 and the Supreme Court would have upheld it despite the constitutional issues flagged in points 2 and 3 above. The Supreme Court would have seen Congress making a broad and real effort to update the coverage formula, and to take steps toward winding down broad preclearance. But path dependence is everything. Congress did not act, even after the Supreme Court’s ruling in NAMUDNO in 2009 warning the act was unconstitutional. Shelby County‘s equal sovereignty principle now hangs out there as the law.

In the meantime, AG Holder has antagonized Texas Republicans and Tea Party types by going after Texas and North Carolina for bail in. Texas Republicans will not be happy they get covered again under the new VRAA coverage formula. Conservatives in the House will fight against this. It is not clear that John Boehner will want to expend political capital on this (though the optics of supporting voting rights can be good—it will come with a lot of resistance).  I also expect opposition among Senate Republicans, where, for legislation, the filibuster remains alive and well.  Will Sen. Reid make this a priority?  I am pessimistic that with the general dysfunction of Congress in particular and antagonism over singling out certain states now, the Act will pass out of Congress.

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