The high court did not rule on the constitutionality of preclearance itself, which is found in Section 5 of the VRA, but its decision left the bill broken and as polarized as the 113th Congress has been, very few people thought a new formula would emerge in the immediate future. This means states are free to pass whatever election laws they want and the only way to challenge the constitutionality of a new law is in court, which can be an extremely lengthy — not to mention costly — process. The issue has since been forgotten or cast aside by major news outlets and politicians — until now.
U.S. Representatives Jim Sensenbrenner (R-Wis.) and John Conyers (D-Mich.), along with Senator Patrick Leahy (D-Vt.) will introduce “The Voting Rights Amendment Act of 2014” to strengthen the VRA and implement a new formula to determine preclearance, which proponents say is necessary to protect voting rights for all citizens.
The Nation breaks down 5 ways the “The Voting Rights Amendment Act of 2014” strengthens the VRA:
1: The legislation draws a new coverage formula for Section 4, thereby resurrecting Section 5. States with five violations of federal law to their voting changes over the past fifteen years will have to submit future election changes for federal approval. This new formula would currently apply to Georgia, Louisiana, Mississippi and Texas. Local jurisdictions would be covered if they commit three or more violations or have one violation and “persistent, extremely low minority turnout” over the past fifteen years.
The formula is based on a rolling calendar, updated with a current fifteen-year time period to exempt states who are no longer discriminating or add new ones who are, creating a deterrent against future voting rights violations. It’s based on empirical conditions and current data, not geography or a fixed time period—which voting rights advocates hope will satisfy Chief Justice John Roberts should the new legislation be enacted and reach the Supreme Court.
The new Section 4 proposal is far from perfect. It does not apply to states with an extensive record of voting discrimination, like Alabama (where civil rights protests in Selma gave birth to the VRA), Arizona, Florida, North Carolina, South Carolina and Virginia, which were previously subject to Section 5. Nor does it apply to states like Ohio, Pennsylvania and Wisconsin that have enacted new voting restrictions in the past few years.
Moreover, rulings against voter ID laws—like in Texas in 2012—will not count as a new violation. Voter ID laws can still be blocked by the Department of Justice or federal courts in the new states covered under Section 4, but that will not be included as one of the five violations needed to keep the state covered. This exemption for voter ID laws was written to win the support of House majority leader Eric Cantor and other Republicans.
2: The legislation strengthens Section 3 of the VRA, which has been described as the Act’s “secret weapon.” Under Section 3, jurisdictions not covered by Section 4 could be “bailed-in” to federal supervision, but plaintiffs had to show evidence of intentional voting discrimination, which is very difficult to do in court. Under the new Section 3 proposal, any violation of the VRA or federal voting rights law—whether intentional or not—can be grounds for a bail-in, which will make it far easier to cover new states. (One major caveat, again, is that court objections to voter ID laws cannot be used as grounds for “bail-in” under Section 3.)
3: The legislation mandates that jurisdictions in all fifty states have to provide notice in the local media and online of any election procedures related to redistricting changes within 120 days of a federal election and the moving of a polling place. This will make it easier for citizens to identify potentially harmful voting changes in the forty-six states not subject to Sections 4 and 5.
4: The legislation makes it easier to seek a preliminary injunction against a potentially discriminatory voting law. Plaintiffs will now only have to show that the hardship to them outweighs the hardship to the state if a law is blocked in court pending a full trial. There will be a preliminary injunction hearing on North Carolina’s voting law in July 2014, before the full trial takes place July 2015.
5: The legislation reaffirms that the attorney general can send federal observers to monitor elections in states subject to Section 4 and expands the AG’s authority to send observers to jurisdictions with a history of discriminating against language minority groups, which includes parts of twenty-five states.
Obviously, the bill is going to be met with serious opposition in Congress, but it may not just come from those who supported the Supreme Court’s decision. There will likely be some who say the bill does not go far enough, that it doesn’t cover enough states, and will object to the fact that it treats voter ID differently than other discriminatory laws.
Photo Credit: Martin J. Reed / [email protected]