The policy is modeled on the 1965 Voting Rights Act, which said that jurisdictions with a history of discrimination must get preapproval from the attorney general to make any changes to voting laws that could affect minorities. That provision, known as the “preclearance” process, was struck down in a 2013 Supreme Court ruling.
Harris would mirror that approach for abortion rights, which would require a new law passed by Congress in order to give the Department of Justice that authority.Harris’ proposal would shift the burden to the law’s authors to prove it is constitutional before it goes into effect. Her plan would apply to jurisdictions that in the last 25 years have been found by court ruling or settlement to have violated Roe vs. Wade,the 1973 Supreme Court decision that protected abortion rights.
The idea faces a number of hurdles, especially its need for a new federal law to give the Justice Department that oversight power.
“Until recent years, there was consensus in Congress about the need for a strong Voting Rights Act,” said Rick Hasen, a voting rights expert and law professor at UC Irvine. “In the last 40 years, there has not been any consensus in Congress on anything regarding abortion.”
Even if Harris did manage to enact a new law, there’s no guarantee the Supreme Court, particularly with its current conservative lean, would uphold it.
“I give it points for creativity,” Hasen said. “I would still say the odds of this ever being enacted or upheld are quite slim.”