The Chances of a Deal to Fix the VRA After Shelby County? Observations about the Senate Judiciary Committee Hearing

I had a chance to watch a good part of the Senate Judiciary Committee hearing today. It makes me more pessimistic about the chances of a deal to improve the Voting Rights Act after the Supreme Court effectively gutted section 5 in the Shelby County case.

Back in February I organized a Reuters Opinion symposium on what Congress could do if the Supreme Court struck down section 5. My thinking was that such a decision would be controversial and Republicans might jump at the chance to fix the Act to improve their position with minority voters. (It’s a point I reaffirmed in this NY Times oped.) Symposium participants offered good ideas for improvements, and after the decision Rick Pildes had an important post on increasing the use of “bail in” as another alternative. I noted in the Reuters piece that I did not expect a new coverage formula to emerge, and one question would be whether a VRA fix would look more like a race-based remedy or more like an election administration (“We’ve got to fix that”) remedy.

Today’s hearing showed how far apart Democrats and Republicans are.  The Democrats seemed to be grandstanding (as when Sen. Durbin attacked ALEC) or living in a different universe (as when Sen. Klobuchar asked questions about same day voter registration). Sen. Whitehouse talked about voter fraud as a non-existent problem.  These are not the ways to get at a bipartisan compromise on new VRA legislation.

Republicans in contrast, were mostly absent from the hearing. Sen. Sessions, who questioned me (and others) so intently in 2006 when the VRA was up for renewal, was absent today. Only Sens. Grassley and Cruz asked questions. Sen. Grassley made it clear that any new legislation should not regulate voter id.  The Republicans’ main witness, Mike Carvin, pushed the idea that Section 2 of the VRA is enough to protect minority voting rights, an idea that Sen. Cruz also pushed.

Let’s be clear. Section 2 is no substitute for section 5. It has virtually no teeth these days outside of the redistricting area (and most areas that require redistricting under section 2 already have been).  It has not been used successfully go to after voter id, and it would be hard to use it (given the statutory standard) to go after problems with voter registration and long lines (an issue Carvin said had nothing to do with racial discrimination or section 5.)

Even worse, if courts start reading section 2 more broadly to cover things like voter id, then section 2 itself could be found by the Roberts Court to be unconstitutional.  This is not fanciful.  I indicated the day Shelby County came out that I expect section 2 and the section 203 to be the next line of attack for conservatives unhappy with race-based legislation. As Sam Bagenstos noted, Mike Carvin has already signed a brief arguing section 2 is unconstitutional. [UPDATE: I have heard from a knowledgeable reader who says that this is not a fair characterization of the brief. I think the brief intimates that section 2 is unconstitutional, but I see the reader’s point. I would love to get clarification from Carvin as to whether he thinks section 2, as it currently is interpreted, is an appropriate exercise of Congressional power to enforce the 14th and 15th amendments.]

Republicans may claim section 2 is good enough but it does not substitute for the bargaining chip for minority voters that was section 5.

If there seems to be little common ground in the Senate, there is even less in the House. The first House hearing tomorrow will be chaired by one of the only members of Congress to vote against the 2006 reauthorization of the VRA. Democrats have done nothing so far to bring other Republicans along, aside from Rep. Sensenbrenner, who was a key player in the 2006 reauthorization.  [UPDATE: Rep. Sensenbrenner must be very disappointed that the Republican witnesses tomorrow are Hans von Spakovsky and J. Christian Adams, neither of whom are likely to support new vote protections under a revised Voting Rights Act.]

In his excellent testimony today, Justin Levitt noted that the VRA in the past had always had broad support from strong bipartisan majorities.  Unfortunately things have changed. Partisanship in Congress is much worse than even in 2006. Congress rarely can effectively respond to Supreme Court rulings. When Congress does respond these days, it is usually when one party has control of both Congress and the Presidency, not today’s conditions.

In the near term, a VRA fix seems unlikely. Today I miss Sen. Arlen Specter, who in 2006 was the Senator most interested in looking for bipartisan compromise on voting rights.  Who will take his place now? Senator Cruz? Senator Durbin?

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