U.S. Senate Democrats will try to advance voting rights legislation in the face of overwhelming Republican opposition for a fourth time on Wednesday, amid pressure to break the deadlock by altering a key Senate rule as early as this month.
The Senate is due to vote on whether to begin debate on the John Lewis Voting Rights Advancement Act, which would restore state voting requirements to prohibit racial discrimination that were struck down by the U.S. Supreme Court in 2013. The vote is slated for 2:15 p.m. (1815 GMT).Report ad
If Republicans block it as expected, which they have done three times this year with other voting bills, Senate Majority Leader Chuck Schumer will face new calls to abolish or alter the chamber’s filibuster rule, which requires 60 of the Senate’s 100 lawmakers to agree on most legislation.
Democrats on Tuesday unveiled a long-awaited linchpin of their drive to protect voting rights, introducing legislation that would make it easier for the federal government to block state election rules found to be discriminatory to nonwhite voters.
House leaders expect to pass the bill, named the John Lewis Voting Rights Advancement Act after the late civil rights icon, during a rare August session next week. They say it would restore the full force of the Voting Rights Act of 1965 after a pair of adverse Supreme Court rulings and that it would help combat a wave of restrictive new election laws in Republican-led states.
“Today, old battles have become new again as we face the most pernicious assault on the right to vote in generations,” said Representative Terri Sewell, the bill’s chief author and a Democrat from Alabama’s civil rights belt, where Mr. Lewis and others staged a national campaign for voting rights in the 1960s. “It’s clear: federal oversight is urgently needed.”
But like other voting rights legislation to come before Congress this year, its chances of passing the evenly divided Senate are exceedingly narrow. Only one Republican, Senator Lisa Murkowski of Alaska, is likely to support the legislation, leaving Democrats far short of the 60 votes they would need to break a Republican filibuster and send the bill to President Biden’s desk….
Earlier on ELB, Travis Crum offered a quick and useful guide to the new bill.
The following is a very helpful guest post from Travis Crum:
Following months of anticipation, Democrats in Congress unveiled the newest version of the John Lewis Voting Rights Advancement Act (VRAA). In this post, I’ll highlight major portions of the bill, so you don’t have to read 65 pages of dense legislative text.
The VRAA is an ambitious bill that would respond to the Supreme Court’s decisions in Shelby County and Brnovich. The most significant difference between this VRAA and other post-Shelby County VRAAs is that it amends Section 2, the permanent and nationwide ban on racial discrimination in voting. Thus, we are witnessing a quick congressional response to Brnovich, something that was left open by the Court’s statutory-only rationale in that decision.
For the first time, the VRAA disaggregates vote-dilution and vote-denial claims. Let’s start with vote-denial claims. The VRAA overturns Brnovich and expressly rejects the factors identified in Justice Alito’s majority opinion, such as whether a practice was widespread in 1982. Instead, the VRAA adopts a two-part test that was used in certain circuits pre-Brnovich: a disparate impact that is attributable to past discrimination. This rebuke of Brnovich will likely bring the constitutional issues that were previously avoided to the fore. And here, the VRAA goes beyond the Senate Factors and identifies new ones, such as the use of photo ID laws. The VRAA further rejects the “mere invocation” of “voter fraud” as a consideration, which would presumably require States to provide some evidence of voter fraud to justify their laws.
The VRAA also answers the so-called “race or party” question: when voting is racially polarized, how does one determine whether race or partisanship motivated the decision? The VRAA says that States can no longer point to partisanship as a justification for a vote-denial law, which makes sense and accords with language in Justice Stevens’s plurality opinion in Crawford.
Setting aside the issues in Brnovich, the VRAA makes clear that laws passed with discriminatory purpose—not just discriminatory results—are prohibited under Section 2. Although laws enacted with racist intent violate the Fourteenth and Fifteenth Amendments and some lower courts have interpreted Section 2 to forbid discriminatory purpose, the Supreme Court hasn’t rule on that question. Some scholars, like Rick Hasen, have questioned whether today’s textualist Court would read Section 2 to encompass discriminatory-intent claims, and this revision appears calculated to preempt to this concern.
Further responding to the textualist threat, the VRAA codifies Justice Brennan’s landmark decision in Thornburg v. Gingles and its “preconditions” for bringing a vote-dilution claim. Plaintiffs thus need to prove residential segregation and racially polarized voting.
Here, I’ll note two points of interest for election law nerds. First, the VRAA specifies that minority voters must constitute a majority in a single-member district, which endorses Justice Kennedy’s plurality decision in Bartlett v. Strickland. This threshold is a prudent move to avoid a constitutional challenge. Second, the VRAA expressly endorses coalition districts—that is, where coalitions of minority voters (e.g., Black and Hispanic voters) are grouped together to satisfy the first Gingles prong. For its part, the Court has stayed mum on whether the current VRA requires coalition districts. This revision could have interesting consequences in parts of the country that are rapidly diversifying and where minority voters support the same candidates.
Moving beyond the Gingles preconditions, the VRAA embeds the so-called Senate Factors into the legislative text. These are part of a “totality of the circumstances” test that’s been in use since the 1970s and was endorsed in the 1982 VRA’s legislative history, but not its text. It’ll be interesting to see how Justices Thomas and Gorsuch—who believe that the current version of Section 2 doesn’t apply to vote-dilution claims—would respond to these revisions.
This brings me to another major development in the 2021 VRAA. For all Section 2 claims, the VRAA adds protections against retrogression of minority voting strength. Sound familiar? That’s because this is a self-conscious cross-application of the rule that used to apply in covered jurisdictions under the pre-Shelby County Section 5 preclearance regime. In the short term, a retrogression requirement in Section 2 would be used against jurisdictions that have rolled back pandemic-era laws that made it easier to vote in 2020. If passed, this non-retrogression requirement will certainly draw the Court’s attention.
Turning now to preclearance, the VRAA responds to Shelby County in three ways. First, it revises Section 3(c) to authorize preclearance if a State or political subdivision violates Section 2, as opposed to the current version which requires a constitutional violation. As I’ve explained before, this change alone could be used to (slowly) re-establish preclearance through litigation and sidesteps Shelby County’s equal sovereignty principle. Admittedly, courts have been reluctant to grant bail-in relief after Shelby County.
Second, the VRAA endorses a rolling coverage formula: a State is covered if, in the past twenty-five years, (1) fifteen or more voting rights violations occurred in the State or (2) ten or more voting rights violations occurred and one of those was committed by the State itself. A county is covered if it commits three violations in the same period. Coverage would last for ten years. This coverage formula resembles prior versions of the VRAA, with some minor revisions to appease Senator Manchin such as a requirement that a jurisdiction admit liability for a consent decree to qualify as a voting rights violation. In addition, the 2021 VRAA clarifies an ambiguity in prior versions: namely, that a final judgment can produce more than just one voting rights violation. For instance, if a court finds that three districts in a State’s redistricting plan are illegal, that’s three violations, not one.
So who would be covered by this new formula? We don’t know for certain, but we have a starting point. For his recent congressional testimony, voting rights historian Peyton McCrary put together a list of covered jurisdictions: Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Texas, Los Angeles County, Cook County, Westchester County, Cuyahoga County, and Northampton County, Virginia. But because McCrary based his list on prior versions of the VRAA—which did not clarify that final judgments could result in multiple violations—his list might grow.
Third, the VRAA endorses practice-based preclearance, a form of quasi-nationwide preclearance that is likely to appeal to Senator Manchin. Some practices, like voter ID laws, are covered everywhere. Other practices, like creating at-large seats, are covered only if certain demographic thresholds are present. As I’ve explained previously, the 2019 version of the VRAA included similar forms of practice-based preclearance, but these provisions still aren’t attracting the same type of attention as the revised coverage formula.
Finally, the VRAA makes it easier to obtain preliminary injunctions in voting rights cases by lowering the threshold for plaintiffs. The bill, for example, limits the application of the so-called Purcell principle, which has been invoked by courts to keep election rules in place. Purcell has been around for years, but it gained increased notoriety during the 2020 election given pandemic-related litigation. And on the procedural front, the VRAA goes after what Will Baude famously called the “shadow docket” by requiring appellate courts to provide reasoned explanations for their decisions when reviewing requests for stays and vacaturs. No more opinion-less orders from the Supreme Court issued in the dead of night.
Overall, the newest version of the VRAA goes far beyond prior drafts in amending Section 2 and is a clear rebuke of both Shelby County and Brnovich. Now we shall see if it has any chance of surviving the Senate.
Over at the House Judiciary Committee.
The House voted on Friday to reinstate federal oversight of state election law, moving to bolster protections against racial discrimination enshrined in the 1965 Voting Rights Act, the landmark civil rights statute whose central provision was struck down by the Supreme Court.
Representative John Lewis, Democrat of Georgia, who was beaten in 1965 while demonstrating for voting rights in Alabama, banged the gavel to herald approval of the measure, to applause from his colleagues on the House floor. It passed by a vote of 228 to 187 nearly along party lines, with all but one Republican opposed.
The bill has little chance of becoming law given opposition in the Republican-controlled Senate and by President Trump, whose aides issued a veto threat against it this week.
The House Judiciary Committee and the House Administration Committee held extensive hearings, including in states like Georgia and Texas, to document the need for a renewed Voting Rights Act. The bill passed the House on a largely party-line vote, 228 to 187. Unlike in 2006, when the reauthorization of the Voting Rights Act passed the House by a vote of 390-33, only one House Republican, Brian Fitzpatrick (R-Pa.) voted for the new bill. Senate Majority Leader Mitch McConnell has already declared his opposition. (McConnell also called a sweeping democracy reform bill passed by House Democrats in March a “power grab” by Democrats.)
Although the VRAA has no chance of becoming law this year, the passage of the bill lays the groundwork for Democrats to make voting rights a major legislative priority should they recapture the Senate and the White House in 2020.
David Smiley for the Tampa Bay Times:
House Democrats seeking to build a case for renewed federal oversight of election laws came to South Florida Monday and accused state lawmakers of systematically disenfranchising voters and passing legislation that would impose an illegal “poll tax” on former felons seeking to regain the right to vote.
Members of an elections subcommittee of the Committee on House Administration held a hearing on voter rights in Fort Lauderdale as part of a seven-city fact-finding tour to create a basis for an update of the 1965 Voting Rights Act. At times, the meeting felt as much an airing of grievances with Florida’s Republican-led state government as an evidentiary hearing, with Democrats ticking off a list of election-related offenses….
Over the last decade, Florida has created arduous voting lines by arbitrarily reducing early voting, been sued over the lack of bilingual voting services and repeatedly watched its elections become the source of national scrutiny. Monday’s hearing is a sign that the nation’s largest swing state is in Congress’ sights as it seeks to restore an oversight process known as “pre-clearance,” in which counties and states are forced to submit voting changes to the federal government for review.
North Carolina and South Carolina would face federal oversight of election law changes if a new Democratic bill to update the Voting Rights Act passes — and the U.S. House of Representatives held a field hearing in North Carolina’s Halifax County last week to help build the case for passage.
The Carolinas are among 11 states are expected to meet a formula for federal oversight in the Voting Rights Advancement Act, according to the bill’s sponsor. Alabama, California, Florida, Georgia, Louisiana, Mississippi, New York, Texas and Virginia are the other states.
Pointed remarks from Sen. Doug Jones (D-AL) on today’s Face the Nation:
Well, you know I think if you look at– carefully you have to look at the state legislatures, governors and members of Congress that are Republicans. For whatever reason they do not want African-Americans and other minorities to vote. I assume rather than- rather than trying to get those votes, they seem to want to restrict those votes. And I think that that’s incredibly unfortunate. We need to have more dialogues in this country rather than monologues and then we can do it about Voting Rights Act. We talk a good game about everybody having the right to vote and a duty to vote. But at the end of the day we seem to be working to try to restrict that and that’s just wrong.
The third time will certainly not be the charm for the Voting Rights Advancement Act….
But that doesn’t mean that this time around is purely symbolic, either…. [A] s big, new progressive ideas like the Green New Deal, Medicare for all, and reparations permeate the 2020 presidential-primary conversation, the reality for Democrats is that voting rights could be the only thing everyone agrees on—and the thing necessary for all of the other potential policies to ever become reality.
This is the third installment of FiveThirtyEight’s well-regarded podcast series called “The Gerrymandering Project.” This episode focuses on racial gerrymandering in North Carolina. Commentary comes from, among many others, Anita Earls, who is now running for a seat on the North Carolina Supreme Court.
In response to this ruling, I introduced the Voting Rights Amendment Act in 2015, and reintroduced it again last week with my Democratic colleague Rep. John Conyers of Michigan. Among other things, the bill modernizes the original 1965 law — which applied preclearance to the same nine states for 48 years — so that the pre-clearance rules apply equally to every state in the country.
Vanita Gupta of DOJ with this WaPo oped.
NYT Letters to the Editor responding to Rep. Sensenbrenner oped.