Voting Rights Act Déjà Vu

Monday is Martin Luther King Day. So the bill, at least symbolically, was a little early, but this morning Jim Sensenbrenner (R-WI) and John Conyers (D-MI) in the House and Senator Patrick Leahy (D-VT) in the Senate (there wasn't one Republican co-sponsor, not even Rick Santorum's favorite fake "moderate" Susie Collins) introduced the Voting Rights Act of 2014, amending the historic Voting Rights Act of 1965. You know, the bill that guaranteed that racist state governments couldn't pass laws to prevent Blacks and other minorities from voting. So the Republican supreme Court struck that down and… of course, immediately racist GOP-controlled state governments started passing laws to keep Blacks and other minorities from voting. It doesn't take a rocket scientist.

Here's the important stuff the new bill will do, if it passes the House and Senate:

Section 2. Violations Triggering Authority Of Court To Retain Jurisdiction-- Provides that a court can “bail-in” a State or political subdivision based on a discriminatory result by amending Section 3(c) of the Voting Rights Act (VRA) to include violations of Section 2 of the VRA and violations of any Federal voting rights law that prohibits voting discrimination against racial and language minorities. It carves out from the new standard Section 2(a) cases that are based on a photo identification requirement.

Section 3. Criteria For Coverage of States and Political Subdivisions-- Sets forth a new nationwide coverage formula that provides that a State or political subdivision will be subject to preclearance under §5 of the VRA as follows:

•  A state can be covered if: (1) it commits 5 voting violations in the most recent 15 year period and (2) at least 1 of the violations is committed by the State itself.
•  A political subdivision within a state can be covered if it commits 3 voting violations in the most recent 15 year period or commits 1 violation in this period and has had “persistent and extremely low minority voter turnout.”
•  A State or political subdivision will continue to be covered for 10 years starting on January 1 of the year of the most recent voting rights violations in the state or subdivision, unless the State or subdivision obtains a “bail-out” under Section 4(a).
•  Under the new VRA, a voting rights violation includes (A) a final judgment from a court that the state or subdivision violated the 14th or 15th Amendment to the Constitution; (B) a final judgment of a court that a state or political subdivision violated federal voting laws; (C) a failure or denial of pre-clearance by a court under section 5 or 3(c) of the VRA; or (D) a failure or denial of pre-clearance by the Attorney General under section 5 or 3(c) of the VRA that is not overturned by a court. The Attorney General’s denial cannot, however, be based on the imposition of a photo identification requirement.
•  “Persistent, extremely low minority turnout” is determined with respect to political subdivisions, comparing the minority turnout rate in the relevant subdivision to other minority and non-minority turnout rates in other subdivisions, the state, and the nation over the most recent 15 years.


Section 4. Promoting Transparency to Enforce the Voting Rights Act-- Creates a new Section of the VRA providing for notice and disclosure by States and political subdivisions for three voting- related matters: (i) late breaking voting changes involving federal elections (e.g., changes in voting standards or procedures enacted 180 days before a federal election); (ii) polling resources involving federal elections (e.g., information concerning precincts/polling places, number of voting age and registered voters, voting machines, and poll workers); and (iii) redistricting and other changes in voting districts involving federal, state and local elections.

Section 5. Authority To Assign Observers In Certain Political Subdivisions-- Clarifies that the Attorney General has the continuing authority to request Federal Observers in jurisdictions subject to pre-clearance, and authorizes the AG to assign observers with respect to additional jurisdictions where necessary to enforce the language minority provisions of Section 203 of the VRA.

Section 6. Injunctive Relief-- Clarifies that preliminary injunctive relief applies to all provisions of the VRA and specifies that such relief shall be granted if, on balance, the hardship imposed upon the defendant by the relief will be less than the hardship imposed on the plaintiff if the relief were not granted.

The key, which will make it possible for any non-KKK Republicans left in Congress to support it, is that it is based on current conditions rather than historical conditions and bad past behavior. No one has covered this as well-- or more persistently-- than Ari Berman at The Nation. He pointed out this morning that when the Supreme Court struck down Section 4, it "covered nine states (Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia) and parts of six others (in California, Florida, Michigan, New York, North Carolina, South Dakota) based on evidence of voting discrimination against blacks and other minority groups dating back to the 1960s and 1970s. Since the Shelby decision, eight states previously covered under Section 4 have passed or implemented new voting restrictions. This includes onerous new laws in states like North Carolina and Texas, which the Justice Department objected to under other provisions of the VRA." Berman says the new bill would strengthen the VRA in 5 distinct ways:

1: …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 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.

The bill is certain to have its critics, including on the left. Voting rights supporters will argue, justifiably, that the new Section 4 formula does not apply to enough states and wrongly treats voter ID laws differently than other discriminatory voting changes. Despite these flaws, the legislation represents a significant improvement over the disastrous post-Shelby status quo, which has seen states like North Carolina and Texas rush to pass blatantly discriminatory voting restrictions after being freed from federal oversight. The legislation strengthens voting rights protections in a number of tangible ways and gives the federal government and voting rights advocates new tools to combat voting discrimination.

There's no list of co-sponsors yet but probably every Democrat will sign on-- even most Blue Dogs. Sensenbrenner told journalists today that he had commitments from Spencer Bachus (R-AL) and Trey Gowdy (R-SC), two Republicans with garden variety racist backgrounds.