May 03, 2006

The Coming Battle (in Congress or the Supreme Court) Over Renewal of the Expiring Provisions of the Voting Rights Act

Issues over renewal of expiring provisions of the Voting Rights Act (especially section 5, which requires jurisdictions with a history of discrimination to get preclearance from the U.S. Department of Justice before making any changes in voting rules or procedures) are heating up, as supporters of renewal released this bill yesterday (see also this summary and this section-by-section analysis). There may not be a battle in Congress over this bill (though there may be one in the end), but if there isn't, there will almost surely be one at the Supreme Court.

Beginning last fall, the House Judiciary Committee under the leadership of Rep. F. James Sensenbrenner held a series of hearings on Voting Rights Act renewal. As I've noted earlier on this blog, Sensenbrenner is a strong supporter of renewal, and wants this bill to pass before he ends his term as chair of the House Judiciary Committee. From what I can tell of the House hearings, it was mostly an opportunity for supporters of the law to make an evidentiary case why section 5 renewal is warranted. There was not much debate, as there seemed to be consensus between the House Republican leadership and the Congressional black caucus to get a strong bill passed.

Now the action is heating up. Yesterday, Sensenbrenner introduced H.R. 9, The Voting Rights Act Reauthorization and Amendments Act of 2006, with a bipartisan list of co-sponsors. The House is holding more hearings tomorrow, the Senate Judiciary Committee will hold its first substantive hearing on Tuesday, May 9.

Things may not go as smoothly in the Senate. According to this A.P. report, "And on Tuesday, three GOP senators -- John Cornyn of Texas, Jeff Sessions of Alabama and Tom Coburn of Oklahoma -- asked Senate Judiciary Committee Chairman Arlen Specter, R-Pa., to slow the process to make sure any legislation would withstand a Supreme Court challenge."

As a supporter of renewal and a believer that the VRA in the past has been important and extremely worthwhile legislation, I hope that things do slow down in the Senate, so that Congress can take the time and make the effort to pass a constitutional law that would protect continue to protect voting rights.

What is the constitutional issue? In a nutshell, the question (at least as applied to section 5; there may be other questions with the language requirements of section 203) is whether Congress has the power to continue to require preclearance of the Voting Rights Act absent a great deal of evidence of a continued intentional discrimination by the covered jurisdictions. As I've explained in detail in this law review article, the Supreme Court has narrowed Congressional power in recent years to pass laws enforcing the Fourteenth and Fifteenth Amendments. It requires Congress when regulating the states under these powers to produce evidence of intentional state discrimination to justify the law, and to show that the remedy is "congruent and proportional" to the violations by the states.

I haven't gone fully through the House record yet, but my sense is that there is not a lot of evidence thus far of intentional state discrimination in voting by covered jurisdictions in recent years. (That's not all that surprising after all if section 5 has been a great deterrent in the past.) This creates the evidentiary problem I discuss in my article. But there are also concerns about "congruence and proportionality" of the draft bill.

I'll have more to say on these issues in coming days, but let me raise some issues now:

Trigger: The draft law doesn't change the trigger provisions (i.e., the standard for setting which jurisdictions are required to submit to preclearance). For many jurisdictions, the trigger is based upon data of voter turnout that is forty years old and that bears little resemblance to voter turnout figures today in these jurisdictions. There is no effort to tie new geographical limits of section 5 to more contemporary evidence of intentional discrimination by covered jurisdictions. The failure to adjust the trigger alone may doom the law--if passed in this form--before the Supreme Court.

Bailout: The draft law does nothing to make it easier for covered jurisdictions who have shown that there are no more vestiges of discrimination a chance to "bail out" from coverage under the law. The existing procedure is seen as onerous by some and is rarely use.

Timing: The new bill would renew the law for another 25 years. A shorter time frame would go a long way toward arguing to the Supreme Court that the measure is proportional.

Georgia v. Ashcroft: The new law states in its findings that the Supreme Court misconstrued Reno v. Bossier Parish II and Georgia v. Ashcroft. I have no problem as a constitutional matter on the Bossier Parish II reversal (it would deny preclearance when a jurisdiction has acted in an unconstitutional, but non-retrogressive, way). I have more problems with Georgia v. Ashcroft. As I argue in my article, Georgia v. Ashcroft made it easier for covered jurisdictions to obtain preclearance, meaning that the burden on covered jurisdictions was eased (and therefore the law looking more "congruent and proportional"). Reversing the case, in contrast, weakens the constitutionality of the measure.

Moreover, even if the intent is to reverse Bossier Parish II and Georgia v. Ashcroft, it is not clear to me that new sections 5 (a), (b) and (c) and (d) working together would in fact reverse these cases. The purpose standard is "any discriminatory purpose." What does that mean? And how is the DOJ to judge when a law "has the purpose or will have the effect of diminishing the ability of any citizens of the United States to vote on account of race or color, or in contravention to [the language guarantees] to elect their preferred candidates of choice" so as to "deny" or "abridge" the right to vote within the meaning of the Act? If the intention is to reverse Georgia v. Ashcroft, Congress should be clear about what a reversal means. Does it mean, for example, that in assessing retrogressive effect, the DOJ shall NOT ever consider the creation of "influence" districts? What about a court considering the views of minority legislators? In other words, it is not clear to me, absent express language in Section 5, how it is that Congress thinks the Supreme Court "misconstrued" Ga. v. Ashcroft.

In the end, Congress should think more carefully about what the law should look like and what it should do. A law with a shorter time frame, better trigger, and easier bailout should be written, but also one that takes into account problems with potential partisan manipulation of the section 5 standards at DOJ. If any case is to be reversed, Congress should overrule Morris v. Grissette, and allow those who disagree with a DOJ decision to preclear a plan to go to court for review of that decision.

More to come in coming days.

Posted by Rick Hasen at May 3, 2006 08:01 AM