[Thursday] morning, Congressman Jim Sensenbrenner (R-WI), Senator Patrick Leahy (D-VT), and Congressman John Conyers (D-MI) introduced proposed amendments to the Voting Rights Act that would rework the section 5 coverage formula invalidated by the Supreme Court in Shelby Co. v. Holder.
The text of the bill – styled the Voting Rights Amendment Act of 2014 – can be found here.
Under the proposed amendments, states and local entities would be required to submit voting changes for preclearance before putting them into effect if they met the conditions of two new statutory triggers.
Ari Berman has a thorough analysis of the bill:
The Sensenbrenner-Conyers-Leahy bill strengthens the VRA in five distinct ways:
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 that are not found to be intentionally discriminatory 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 180 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.
As Berman notes, the bill doesn’t go nearly as far as many of us would like – not taking voter ID laws into account for the preclearance criteria is a big deal – but it does do a lot to make up for the mess that SCOTUS left behind when they killed Section 4. Putting Texas back under preclearance would be major. As Daily Kos notes, the bill does have the support of Civil Rights veterans like Rep. John Lewis, as well as the ACLU, but it has attracted criticism from several minority groups. This is likely the best we’re going to get, and as Ed Kilgore says, getting enough support from Republicans to pass it – hell, to bring it to a vote – is far from assured. I can’t even begin to imagine the level of deranged fanaticism it will drive Ted Cruz to. President Obama pledged to fight for a renewed Voting Rights Act, and this bill can be considered a down payment on that promise, but of course if he pushes for it too much it’ll ensure all the Republicans oppose it. So we’ll see where, if anywhere, it goes from here.