Congress is taking the first steps toward bringing back pre-clearance of voting laws under the Voting Rights Act this week, as activists express tempered optimism in lawmakers’ willingness and ability to act.
The U.S. Supreme Court last month tossed out the Voting Rights Act’s formula that determined which jurisdictions must submit their voting law changes to the federal government before enacting them. The 5-4 ruling did not get rid of pre-clearance altogether but said Congress must come up with an updated standard to enforce it rather than the 1965 version that covered Georgia and other Deep South states with a history of overt discrimination.
The Senate Judiciary Committee will kick off the congressional response with a hearing Wednesday featuring Congress’ civil rights conscience: Atlanta Democratic U.S. Rep. John Lewis.
A House Judiciary subcommittee will follow Thursday with another hearing. At this point, no bills have been introduced, and civil rights groups are still discussing what to put forth and how to nudge the process along. They are weighing the political realities in a Congress where the Republican-run House and Democrat-controlled Senate often are light years apart.
“That’s why this is a delicate operation and why I think the plan has to be very carefully crafted,” said Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund. “Even with really substantial bipartisan majorities in the last re-authorization seven years ago, it is a different Congress.”
Preparing for an inevitable court challenge, Congress compiled thousands of pages of testimony and other legislative records to support the 2006 Voting Rights Act re-authorization. U.S. Rep. John Conyers of Michigan, the leading Democrat on the House Judiciary Committee, said he does not expect anything approaching that lengthy record-building.
“Before, we had to look at the whole bill, all the sections and all the states,” Conyers said. “Now we don’t have that problem. So I think it will run much smoother. But I do see another problem is that the partisanship of the committee now is such that … we would not get the kind of cooperation that would lead us to being able to agree on who should still be covered.”
Discriminatory voting laws are still subject to a lawsuit under Section 2 of the Act, but for the moment there is no formula for certain jurisdictions to submit proposed laws — anything from a voter ID requirement to moving a polling place — to the federal government for pre-approval.
Advocates say pre-clearance stops harmful laws before they can do damage and helps catch under-the-radar discrimination in small jurisdictions. Opponents say federal supervision is invasive, costly and redundant when Section 2 is still in place.
Lewis, a leading figure in the civil rights movement who watched President Lyndon Johnson sign the Voting Rights Act in 1965, will play an influential role in shaping the congressional response.
In addition, Lewis and House Minority Whip Steny Hoyer will call on President Barack Obama to fill long-standing vacancies on the Election Assistance Commission, Hoyer told reporters Tuesday. The four-member EAC is a bipartisan, independent commission intended to provide recommendations on federal election law, but Republicans say it’s wasteful and have voted to get rid of it and blocked any appointees since 2011.
Lewis is the headliner for Wednesday’s Senate hearing and will be joined by Rep. James Sensenbrenner, R-Wis., who led the 2006 re-authorization in the House and has been supportive of drafting a new law.
Lewis has brought many colleagues from both parties over the years to Selma, Ala., to walk the path of the 1965 “Bloody Sunday” voting rights march. The televised brutality of white police officers against the marchers — including Lewis — shocked the nation and spurred the passage of the Voting Rights Act a couple of months later.
Majority Leader Eric Cantor cited that trip in his response to the Supreme Court ruling, in which he said Congress must act. Other Republicans such as U.S. Sen. Johnny Isakson and U.S. Rep. Doug Collins of Gainesville — a freshman with an arch-conservative voting record — have said Congress should come together on a new formula.
Agreeing that action is necessary is one thing. Agreeing on the scope of pre-clearance is another.
“This particular Congress has had a great difficulty in agreeing on a number of issues, and I don’t see this Congress ultimately redoing the coverage formula,” said Doug Chalmers, an Atlanta-area attorney who represented Sandy Springs in its successful effort to be released from federal pre-clearance.
“The Voting Rights Act was a very valuable piece of legislation in correcting one of the great injustices in American history. But as often happens, it was applied far too broadly long after it was needed and created a great backlash.”
Scott Simpson disagreed. The press secretary for the Leadership Conference on Civil and Human Rights, which is working to coordinate a response with several advocacy groups, Simpson said positive remarks from Republicans indicate that past bipartisan support for the Voting Rights Act can hold.
“The fact that hearings are being held within one month of the ruling shows that Congress is taking seriously its responsibility to protect voters from racial discrimination,” he said. “We’re encouraged by the many positive statements from both Democrats and Republicans on the need to respond to the decision. … It’s early yet, and the legislative process has only just begun. But we strongly believe that that bipartisan consensus is possible again.”