Welcome
The United States Law Week

Proposal to Undo Supreme Court Voting Rights Ruling Advances

Oct. 23, 2019, 5:53 PM

A proposal to restore prior federal approval of changes in voting laws or practices in areas with a history of discrimination advanced in the House on Oct. 23, more than six years after the Supreme Court struck down a key part of the Voting Rights Act.

The Democratic-led House Judiciary Committee voted 19 to 6 along party lines to send the Voting Rights Advancement Act of 2019 to the full chamber for consideration. It’s unclear when the House might take it up and Republicans say companion legislation would go nowhere in the Senate.

The bill is necessary to restore the Voting Rights Act of 1965 “to its full vitality” after the justices essentially “gutted” the core civil rights statute with its “disastrous” Shelby County ruling, Judiciary Committee Chairman Jerrold Nadler of New York said.

The measure would establish a new “coverage formula” to determine which jurisdictions are subject to “preclearance,” which is federal approval over changes to local election requirements.

Shelby County v. Holder, decided in 2013, has served as a rallying cry for progressives. Democrats and voting rights advocates complain that it triggered efforts in certain jurisdictions to make voting more difficult for minorities.

There has been an “ongoing and disturbing pattern” of new restrictive voting requirements passed by state and local governments, including voter identification laws, Nadler said.

Court Divided

In Shelby County, the five-member majority said the formula used in Section 4 of the Voting Rights Act imposed extraordinary burdens on state and local governments based on outdated conditions.

Part of Chief Justice John Roberts’ rationale in the majority opinion was that the law had so dramatically changed circumstances that preclearence, at least under the decades-old formula, was no longer appropriate.

Justice Ruth Bader Ginsburg, who dissented, said at the time that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Poison Pill

While voting rights protections for minority voters has traditionally received broad bipartisan support, H.R. 4, is a “poison pill” that “won’t go anywhere in the Senate,” said Rep. F. James Sensenbrenner (R-Wis.).

Sensenbrenner sponsored the last reauthorization of the Voting Rights Act in 2006, which passed the House 390-33, and the Senate 98-0.

Of the lawmakers cosponsoring the two substantially similar bills currently before the House and Senate, none are from the GOP.

Rep. Steve Chabot (R-Ohio) identified the provision requiring automatic preclearance for voter ID laws as a particular sticking point for Republicans.

Sensenbrenner has introduced a competing proposal, H.R. 1799. He urged Democrats to step back and decide whether they “want an issue or a law.”

‘Whack-A-Mole’

The Democratic House bill would establish a “rolling formula” that would update itself automatically. It would identify which jurisdictions must submit changes to voting laws for preapproval from either a D.C.-based federal court or the Department of Justice before implementing such changes.

The new formula targets the “most recent and worst offenders,” said University of Chicago Law School’s Travis Crum, by requiring preclearance for states that have had 15 or more voting rights violations within the last 25 years, or just 10 if one of the violations was committed by the state itself, as opposed to a local government.

Reestablishing a coverage formula that can pass constitutional muster is important to prevent a “discriminatory game of whack-a-mole,” Nadler said.

He noted that preclearance was originally enacted to prevent jurisdictions from replacing challenged voting restrictions with new ones while litigation over the old rules languish in courts.

‘Federal Fiat’

While Rep. Mike Johnson (R-La.) agreed that discriminatory voting restrictions are wrong, he said the bill as proposed would prohibit states from enforcing even neutral voting laws. The bill would “unconstitutionally deny states and localities control” over their own voting laws without any showing that the laws are intended to be discriminatory, Johnson said.

The provision requiring automatic preclearence for voter id laws was again the target of Republican rebuke, with Johnson calling it a “federal fiat.”

Moreover, he pointed to the Justice Department’s “history of politicizing” preclearence. The process has allowed it to amend or veto state laws to the benefit of the party in power, Johnson said. The DOJ is one of two entities able to preclear changes in voting practices, the other being the U.S. District Court for the District of Columbia.

Congressional Override

Congressional rebuke of Supreme Court action via subsequent legislation isn’t new.

The Pregnancy Discrimination Act and the Religious Freedom Restoration Act were both born out of a desire to upend unpopular high court decisions.

“Some of the most notable overrides include protections of minority interests such as voting, religious minorities, and woman in the Title VII employment discrimination context,” said William & Mary law professor Neal Devins.

Such statutory overrides, however, seem to be occurring less frequently.

“You need both houses of Congress to come together to pursue a statutory override” and in the current “air of polarization” that type of legislation has slowed down, Devins said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com