New Voting Rights Act Rewrite Would Revive Federal Oversight for Only 4 States

Georgia, Louisiana, Mississippi, and Texas would be required to earn DOJ approval of any changes to election law under the new proposal.

At the polls: Voting process under scrutiny.
National Journal
Jack Fitzpatrick and Dustin Volz
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Jack Fitzpatrick and Dustin Volz
Jan. 16, 2014, 9:11 a.m.

Sev­en months after the Su­preme Court in­val­id­ated key sec­tions of the Vot­ing Rights Act for re­ly­ing on out­dated stand­ards of ra­cial dis­crim­in­a­tion, a bi­par­tis­an group of law­makers in­tro­duced a bill Thursday re­as­sert­ing fed­er­al over­sight of vot­ing in some states.

The bill, sponsored by Demo­crats Sen. Patrick Leahy and Rep. John Con­yers and by Re­pub­lic­an Rep. Jim Sensen­bren­ner, would amend Sec­tion 4 of the Vot­ing Rights Act to re­quire states to un­der­go pre­clear­ance changes if five or more vot­ing-rights vi­ol­a­tions have oc­curred with­in the last 15 years in the state, or a loc­al­ity with­in the state, with at least one vi­ol­a­tion be­ing com­mit­ted by the state it­self.

The Vot­ing Rights Amend­ment Act of 2014 would re­vive the Justice De­part­ment’s over­sight of elec­tion activ­it­ies in cer­tain states and would de­term­ine which states need to earn ap­prov­al from the de­part­ment for any change to elec­tion law, a pro­cess known as pre­clear­ance.

The for­mula pre­scribed un­der the bill would be less strict than the one used in the past, prompt­ing ire and de­bate among law­makers and civil-rights groups be­fore it was even of­fi­cially in­tro­duced. A con­gres­sion­al aide work­ing with the bill told Na­tion­al Journ­al that only four states would cur­rently be placed un­der pre­clear­ance in the pro­posed VRA re­write: Geor­gia, Louisi­ana, Mis­sis­sippi, and Texas. All or part of 15 states were covered un­der the first for­mula. Nine states were covered in full, along with parts of six oth­er states.

The re­in­stated pre­clear­ance re­quire­ment could be par­tic­u­larly un­pop­u­lar in Texas, where a strict voter-ID law was blocked by the Justice De­part­ment in March 2012 but went in­to ef­fect after the June court rul­ing.

The bill would also re­quire states tagged for pre­clear­ance to re­main un­der the Justice De­part­ment’s over­sight for 10 years.

The new for­mula in­cludes sev­er­al cri­ter­ia de­term­in­ing wheth­er a state falls back un­der Justice De­part­ment over­sight. If a court has de­term­ined that a state denied any cit­izen’s right to vote based on race or lan­guage, or if a court has found that a state im­posed a pre­requis­ite to vot­ing in a way that abridged the vot­ing rights of a cer­tain race, that state would fall un­der the pre­clear­ance re­quire­ment.

Loc­al jur­is­dic­tions could also fall un­der the pre­clear­ance re­quire­ment without their en­tire states be­ing in­cluded based on “per­sist­ent, ex­tremely low minor­ity turnout” rates span­ning the past 15 years.

The pre­clear­ance re­quire­ment would also ap­ply to any state in which At­tor­ney Gen­er­al Eric Hold­er has filed an ob­jec­tion to a vot­ing pre­requis­ite, un­less the ob­jec­tion was based on a state’s voter-ID law.

Already, the bill is cre­at­ing di­vides in Con­gress. Mem­bers of the Con­gres­sion­al Black Caucus have so far in­dic­ated their sup­port, but the His­pan­ic Caucus and some out­side civil-rights groups be­lieve the bill should be broadened to in­clude a “known prac­tices” for­mula, which would link fed­er­al over­sight not only to geo­graph­ic­al areas and past vi­ol­a­tions, but to spe­cif­ic prac­tices wherever they oc­cur.

The bill’s spon­sors have clout on this is­sue. Sensen­bren­ner, a Wis­con­sin Re­pub­lic­an, helped lead the reau­thor­iz­a­tion of the VRA in 2006. Con­yers, a Michigan Demo­crat, has been vo­cal on vot­ing rights for dec­ades, and Leahy, a Ver­mont Demo­crat, chairs the Sen­ate Ju­di­ciary Com­mit­tee.

“Through months of ne­go­ti­ation and com­prom­ise, Con­gress­men Sensen­bren­ner and Con­yers and I have agreed on a bi­par­tis­an and bicam­er­al pro­pos­al to re­store the pro­tec­tions of the Vot­ing Rights Act that were weakened by the Su­preme Court’s de­cision last sum­mer,” Leahy said in a state­ment. “Our sole fo­cus throughout this en­tire pro­cess was to en­sure that no Amer­ic­an would be denied his or her con­sti­tu­tion­al right to vote be­cause of dis­crim­in­a­tion on the basis of race or col­or.”

After the Vot­ing Rights Act passed in 1965, all or part of 15 states with a his­tory of dis­crim­in­a­tion had to pass all elec­tion changes through the Justice De­part­ment for pre­clear­ance. Voter-ID laws and even re­lo­ca­tion of polling places had to be ap­proved by the fed­er­al gov­ern­ment be­fore tak­ing ef­fect statewide in Alabama, Alaska, Ari­zona, Geor­gia, Louisi­ana, Mis­sis­sippi, South Car­o­lina, Texas, and Vir­gin­ia, and in parts of Cali­for­nia, Flor­ida, Michigan, New York, North Car­o­lina, and South Dakota.

But the Su­preme Court ruled in June that the for­mula de­term­in­ing which states had to go through the pre­clear­ance pro­cess — out­lined in Sec­tion 4 of the law — was un­con­sti­tu­tion­al be­cause it was based on cri­ter­ia from the 1960s, a com­bin­a­tion of which states used now-il­leg­al lit­er­acy tests and which had low voter re­gis­tra­tion and turnout among minor­it­ies. The Justice De­part­ment could still have over­sight of cer­tain states, the Court ruled, but only if Con­gress passes a law with an up­dated for­mula to de­term­ine which states need that over­sight.

Des­pite the op­por­tun­ity to re­in­state the pre­clear­ance re­quire­ment, civil-rights ad­voc­ates panned the Shelby County v. Hold­er rul­ing. Rep. John Lewis, D-Ga., said re­mov­ing the pro­vi­sion was “a dag­ger in­to the heart of the Vot­ing Rights Act.”

The high court em­phas­ized how strict the pre­clear­ance re­quire­ment was, say­ing it should only be placed on states that clearly need fed­er­al over­sight.

“While one state waits months or years and ex­pends funds to im­ple­ment a val­idly en­acted law, its neigh­bor can typ­ic­ally put the same law in­to ef­fect im­me­di­ately, through the nor­mal le­gis­lat­ive pro­cess,” said the court opin­ion, writ­ten by Chief Justice John Roberts.

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