Being Black in America is a constant challenge. The news has shown over and over again that you can’t
June 25th, 2013 was a dark day for American politics. To the dismay of millions, the Supreme Court essentially gutted the Voting Rights Act of 1965 in a ruling over a little-known court case called Shelby County vs. Holder. Their decision involved nullifying the most effective component of the Act – the federal pre-clearance requirement for states with a history of voter discrimination to change their voting laws known as Section Five – by determining that Section Four, the formula used to decide who is subjected to that pre-clearance, is unconstitutional. The two provisions are designed to work in tandem; striking down Section Four renders Section Five null and void. Unsurprisingly, nearly all the states previously subjected to the pre-clearance requirement immediately began to pass a variety of draconian voting measures and restrictions, setting back voting rights by decades in some states.
However effective the SCOTUS believed their strategy of punting Section Four back to our horribly gridlocked Congress might be in subverting the law, they could be in for a real surprise in the days and weeks to come. A bipartisan amendment to the Voting Rights Act has been brought before the House Of Representatives, spearheaded by James Sensenbrenner (R-WI) and John Conyers (D-MI). The amendment, coined with the rather uninspiring name “The Voting Rights Amendment Act of 2014,” is designed to reinstate Section Four of the VRA in accordance with the SCOTUS ruling, thereby resurrecting Section Five and bringing the VRA back to full effectiveness. As the first bipartisan effort to circumvent the Supreme Court’s decision, it’s a positive step in the right direction.
The centerpiece of the amendment is Section Four’s new coverage formula, which requires any state with five or more federal voting rights violations across the past fifteen years to submit future voting law changes for federal approval. Local jurisdictions in those states will also be covered, provided they have three or more violations in the same time period, or if “persistent, extremely low minority turnout” can be proven as the result of a violation.
Where the original formula covered some or all of fifteen different states, the new formula covers only four: Georgia, Louisiana, Mississippi and Texas. However, the old formula was based on historical evidence and fixed geography, and the new one is based on a rolling calendar, which promises to strengthen Section Five in the long run by making it more elastic. The rolling calendar allows for states to be added to or exempted from Section Five based upon current data and behavior, and while this does not immediately apply to some of the VRA’s more grievous offenders (I’m looking at you, North Carolina) they’ll still need to tread lightly in the years to come if they don’t wish to rescind their exemption.
Sadly, Department of Justice objections to voter ID laws will no longer being considered violations of the Voting Rights Act under the amendment proposal, even if the DOJ blocks those laws from being implemented. This is being hotly contested by progressive groups; voter ID laws have been one of the key strategies employed by VRA offenders to give their curtailing of voting rights a veneer of legitimacy, and this will only strengthen their ability to rely upon them. However, there is a caveat: if a voter ID law is brought before a federal court, a judgment against it will still count as a violation. Further negotiations over the bill in Congress will hopefully push to include voter ID laws under the formula, or at least push for greater transparency in voter ID legislation, as well as solid and abundant infrastructure to support its implementation.
On the bright side, the amendment does promise to fortify Section Three, which allows states to be “bailed in” to federal pre-clearance supervision under Section Five if found in violation of voting rights. Currently, the burden of proof is required by plaintiffs in a court of law to show intentional voter discrimination by the state, a thing most difficult to acquire. However, under the current proposal, any violation of the VRA or any other federal voting rights law can be grounds for a bail-in, whether that violation was intentional or not. As I mentioned before, this does not apply to voter ID legislation not found to be intentionally discriminatory, making it all the more imperative to push for voter ID laws to be covered under Section Four. In addition, the amendment will simplify the process for seeking preliminary injunctions against potentially discriminatory voting laws. If passed, plaintiffs will only be required to prove that the hardship they endure from a voting law is greater than that endured by the state in order to block a law pending a full trial, further lowering the burden of proof for the general public.
Rounding out the legislative package is a requirement for all fifty states to provide adequate notice in both local and online media of any changes in redistricting procedures, election law changes within 180 days of a federal election, and the relocation of polling places. This will improve the public’s ability to recognize potential infringements on their voting rights well in advance, especially in states not covered under Sections Four and Five.
Finally, the amendment will reaffirm and expand the authority of the Attorney General’s office to employ federal observers to monitor states covered under Section Four, as well as to any jurisdiction with a history of discrimination against language minority groups. While language isn’t the only discrimination barrier for voting, it’s a big one, spanning across half the states in the Union. Further negotiations will hopefully advocate to expand the AG’s authority beyond language discrimination to any form of voting discrimination, up to and including voter ID laws.
“The Voting Rights Act Amendment” is hardly perfect. There are significant shortcomings, least of all the sorely inadequate state coverage and the exclusion of voter ID laws from penalty. But given the circumstances, we could have got a whole hell of a lot worse. Sensenbrenner and Conyer’s proposal will effectively strengthen voter protections while also giving progressive advocates new and better tools with which to combat discrimination.
It’s hard not to believe that trying to get anything accomplished in our current Congressional morass is an exercise in futility, especially with the GOP more rabid than ever in the struggle over voting rights. But this legislation, short and sweet as it is, puts a simple question before lawmakers: how difficult do you want to make it for people to vote? Not the people you like, but the ones you don’t?