Further Changes to the John Lewis VRA

Joe Manchin made news yesterday by endorsing H.R. 4 (which would revive Section 5 of the VRA) over H.R. 1 and by recommending nationwide preclearance, applicable to all fifty states. Nationwide preclearance would solve one of the Shelby County Court’s two problems with Section 5: that it differentiated among states, subjecting some but not others to preclearance (and based on decades-old data, to boot). Nationwide preclearance wouldn’t differentiate among states at all. So there’s no way it could violate states’ supposed right to be treated the same as all other states.

However, nationwide preclearance wouldn’t address the Shelby County Court’s other concern: that preclearance itself may no longer be an available remedy under the Fourteenth and Fifteenth Amendments because modern voting conditions supposedly aren’t bad enough anywhere to justify extraordinary federal intervention. As the Court put it, the claim that “the preclearance requirement, even without regard to its disparate coverage, is now unconstitutional . . . . ha[s] a good deal of force.”

There’s another revision to H.R. 4, though, that would solve this problem, too: applying the law to federal elections only. If the law were restricted to federal elections, then Congress could pass it under the Elections Clause of Article I and the Electors Clause of Article II. Crucially, these provisions aren’t limited by the congruence-and-proportionality standard for exercises of Congress’s Fourteenth Amendment enforcement power, and they’re also not limited by Shelby County’s various glosses on Congress’s Fifteenth Amendment enforcement power. Under the Elections Clause, in particular, Congress has essentially plenary authority over congressional elections. It could write a comprehensive code for congressional elections, if it wanted. This greater power certainly includes the lesser power of subjecting all state regulations of congressional elections to preclearance.

This package of nationwide preclearance for federal electoral regulations only would be very effective at stopping voter suppression. Most voting restrictions disproportionately burden minority citizens. Under well-established precedent, that disparate racial impact would lead to preclearance being denied to these measures. The limits on absentee voting, drop boxes, polling place hours, and so on recently adopted by Florida, Georgia, and other states—they’d all be blocked because they’d worsen the electoral position of minority citizens.

But nationwide preclearance for federal electoral regulations only would be mostly impotent against partisan gerrymandering. The reason is that aggressive partisan gerrymanders are perfectly compatible with maintaining (or even increasing) the numbers of minority ability districts. Republican mapmakers, in particular, are usually happy to preserve (or even augment) these districts because they inefficiently pack Democratic voters, leaving fewer Democrats for plans’ remaining districts. As an illustration, consider the 2010s experiences of the southern states formerly covered by Section 5. All of their congressional maps were drawn by Republicans and biased in a Republican direction (egregiously so in AL, GA, NC, and SC). With the exception of Texas, all of their maps were also precleared. Section 5, that is, did next to nothing in the 2010s to thwart partisan gerrymandering.

Accordingly, if H.R. 4 is to be the vehicle for electoral reform instead of H.R. 1 (per Manchin’s suggestion), it needs to be supplemented by provisions that would stop partisan gerrymandering. The most logical candidates are H.R. 1’s own anti-gerrymandering sections, which would (1) require states to use independent redistricting commissions for their congressional plans, and (2) prohibit maps that have the intent or effect of unduly favoring a party. I’d prefer H.R. 1 (in its entirety) and H.R. 4 (as last passed by the House) to this combination of a revised H.R. 4 supplemented by H.R. 1’s anti-gerrymandering sections. But if H.R. 1 ultimately has no path forward (because of Manchin), this combination would still be a momentous accomplishment.

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