Travis Crum: “Revising Sections 2 and 5 in the John Lewis Voting Rights Advancement Act of 2021”

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.

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