Democrats Have Stronger Proposal to Amend Voting Rights Act, But Huge Obstacles to Enacting It

Ari Berman has the scoop on a new “Voting Rights Advancement Act” (not to be confused with the earlier “Voting Rights Amendment Act”) to fix what many see are problems with the Supreme Court’s gutting of the precelarance provisions two years ago in the Shelby County case. “The legislation will be formally introduced tomorrow by Senator Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, and leaders of the Black Caucus, Hispanic Caucus and Asian Pacific American Caucus in the House. Civil rights icon Representative John Lewis will be a co-sponsor.”

One key provision would recreate preclearance with a new coverage formula:

The Voting Rights Advancement Act restores Section 5 of the VRA by requiring states with fifteen voting violations over the past twenty-five years, or ten violations if one was statewide, to submit future election changes for federal approval. This new formula would initially cover thirteen states: Alabama, Arkansas, Arizona, California, Florida, Georgia, Louisiana, Mississippi, New York, North Carolina, South Carolina, Texas and Virginia. (The VRAA of 2014 covered only Georgia, Louisiana, Mississippi and Texas.) Coverage would last for a ten-year period.

Berman reports the bill will have other significant provisions, including nationwide precelarance for certain changes, such as enactment of voter id laws or proof of citizenship at registration.

A few reactions.

1. It is hard to blame Democrats for introducing a bill that more closely tracks their preferences. The original VRAA was written for bipartisan compromise.  (Tellingly, one feature excluded voter id objections from the list of objections which could count under a new coverage formula).  Democrats have been patient, but Republicans are not moving at all on the compromise legislation. So Democrats had little to lose putting up a marker.

2. If this bill ever became law, there would be some serious constitutional questions about it if it came before the current Supreme Court.  Heather Gerken is quoted in the article as saying the timeline is better in terms of constitutionality, and I agree. But the fact is that many of the older objections were based on conduct that was not itself unconstitutional. And so it is not clear that those earlier objections could be used to rein in states now with the strong medicine of preclearance.  Further, as to the national preclearance standards, there would not be an “equal sovereignty” objection (with some states being treated differently than others) but there would remain the federalism question about state v. federal control over elections.  Constitutionality, in short, is uncertain.

3. In terms of dealing with the biggest problems today, they crop up everywhere, from Kansas, to Arizona, to Ohio to Pa.  The idea of nationwide preclearance of discrete election practices may have more impact than those states to be targetted for blanket preclearance.

4. At the very least, with the 50th anniversary of the VRA approaching, it is good to see Democrats doing something to keep this issue in the news.

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