Observations about the JLVRAA

Thanks to Travis for his terrific summary of the John Lewis Voting Rights Advancement Act, which was finally introduced yesterday. A few observations about the bill:

1. Crossover districts: Instead of overriding Bartlett v. Strickland and allowing plaintiffs to win where only crossover (as opposed to majority-minority) districts could be drawn, the JLVRAA codifies Bartlett’s holding. It states that, “as a threshold matter,” minority members must be “sufficiently numerous . . . to constitute a majority in a single-member district.” It’s interesting that a bill that overrides other Supreme Court precedents (like Shelby County and Brnovich) declines to take on Bartlett.

2. The Brnovich fix: The JLVRAA lists and rejects the five factors for vote denial claims that the Court plucked out of thin air in Brnovich. (I supported this approach to overriding Brnovich in my House testimony last month.) The JLVRAA also specifies what should replace the Court’s five made-up factors: the two-part test that most lower courts used prior to Brnovich. Under this test, a plaintiff must establish that an electoral practice (1) causes a racial disparity (2) through its interaction with social and historical conditions of discrimination. What’s missing from this test, as I argued in this article, is explicit consideration of the state’s justification for the practice (as well as the fit between the practice and the state’s interest). I’d therefore recommend adding a third prong to the test along the following lines: “(C) the defendant cannot show that the challenged qualification, prerequisite, standard, practice, or procedure is necessary to achieve a substantial state interest.” This amendment would harmonize the VRA with the rest of disparate impact law. It would also reduce the provision’s constitutional vulnerability.

3. Section 2 retrogression: For decades, the essential substantive difference between Section 2 and Section 5 was that Section 2 enabled plaintiffs to improve the status quo while Section 5 guarded against the status quo’s deterioration. The JLVRAA eliminates that distinction by creating a cause of action under Section 2 for retrogression. This move also severs the historical link between preclearance and retrogression: Now jurisdictions not subject to preclearance could still be liable for retrogression.

4. The new coverage formula: To determine which jurisdictions are subject to preclearance, the JLVRAA uses the volume of voting rights violations over the previous twenty-five years. This is a reasonable approach that addresses the Shelby County Court’s complaint about the old coverage formula—namely, that it was obsolete and thus irrational. However, as Adam Cox and Tom Miles have explained, the number and success rate of lawsuits are mediocre proxies for the underlying prevalence of an activity. So we can’t necessarily infer that jurisdictions with many voting rights violations are, in fact, guilty of more racial discrimination in voting. They might just be home to more litigious plaintiffs, more incompetent defendants, or more receptive courts. In addition, it seems to me that findings of liability in racial gerrymandering (as opposed to racial vote dilution) cases count as voting rights violations. If that’s right, then quite a few of the qualifying violations involve merely expressive harms—not minority citizens actually being prevented from voting or underrepresented.

5. Practice-based preclearance: The JLVRAA breaks new ground in imposing practice-based preclearance nationwide. Sufficiently diverse jurisdictions everywhere in America would need permission before (among other things) switching from districted to at-large elections, enacting new district plans, adopting identification requirements, eliminating polling places, and implementing new voter roll purging policies. This section of the bill counters another objection of the Shelby County Court: that the old coverage formula improperly differentiated among the states. Practice-based clearance treats all states equally.

6. The Purcell fix: The JLVRAA halts the Supreme Court’s recent, troubling practice of denying relief because of the proximity of an election. The bill categorically forbids reliance on the Purcell principle when a suit is filed within 30 days of a practice’s adoption or more than 45 days before an election. Even in other cases, the bill makes it extremely difficult for Purcell to be successfully invoked. And critically, the bill nullifies Purcell not just for VRA suits but for essentially all election law claims: any involving the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, or Twenty-Sixth Amendments, the NVRA, HAVA, or UOCAVA.

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