What Congress Should Consider Before Renewing the Voting Rights Act: A Chance to Preempt Supreme Court Invalidation, and Better Protect Minority Voting Rights

Important provisions of the Voting Rights Act (VRA) expire next year, unless renewed by Congress. The good news is that a vigorous debate is taking place over whether, and how, the relevant VRA provisions should be amended before they are renewed. The bad news is that this debate is taking place among academics, not among Members of Congress.

Rather than considering changes to the relevant VRA provisions, Congress seems poised to simply renew them in their present form for another 25 years . But that move could embolden the new Roberts Supreme Court to strike the Act down as unconstitutional. Moreover, a simple renewal squanders an opportunity for Congress to take a more serious look at how it can fix its voting laws to better protect minority voting rights in the Twenty-first Century.

Before it closes the "deal" on VRA renewal, Members of Congress should look more carefully at what can, and should, be done.

The Voting Rights Act Provisions that Are Up for Renewal

First, the basics. Not all of the provisions of the VRA are up for renewal. For instance, one of the pillars of voting rights litigation -- Section 2, which guarantees members of protected minority groups across the nation a fair chance to participate in the political process -- is a permanent provision of the Act.

What provisions are up for renewal? Among them are bilingual ballot requirements for areas with large populations of voters whose first language is not English, and rules for election observers in places where there could be problems at the polls.

But by far the most important expiring provision is Section 5 of the Act, the "preclearance" provision.

The Crucial "Preclearance" Requirement: DOJ Approval of Voting Changes

The "preclearance" requirement came straight out of the Civil Rights Movement.

Back in 1965, Congress decided that it had had enough of Southern jurisdictions' clever attempts to avoid creating equality at the ballot box. When the federal government would challenge a racially discriminatory voting test--for example, a literacy test--as unconstitutional, the jurisdiction would stop the practice, only to put another racially discriminatory practice in its place. So Congress decided that those states with a history of racial discrimination needed to get "preclearance" from the Department of Justice (or a special three-judge court) before making changes in its voting rules - and, to this effect, enacted Section 5. To survive the "preclearance" process, the state had to prove that its voting change would not make the position of minorities worse off.

South Carolina challenged the "preclearance" remedy as unconstitutional, arguing that Congress didn't have the power to require states--and only some states--to submit to what some have called "federal receivership." But the Supreme Court, citing the covered jurisdictions' "pervasive," "flagrant," and "unremitting" history of racial discrimination in voting, upheld section 5 of the VRA as a permissible exercise of congressional power.

In 1975 and 1982 Congress renewed section 5, and added additional jurisdictions to the list: Today, section 5 covers 9 (mostly Southern) states and portions of seven other states -- including California, Florida, New York, and New Hampshire.

The 1982 renewal takes us to 2007, and it expires unless renewed by Congress.

Currently, as I noted above, there's broad consensus in Congress that the expiring provisions of the Voting Rights Act should be renewed in some form. (A few House members from Georgia and Texas are making noises about extending the act nationally, but this appears to be just political posturing for the folks back in their districts.)

Indeed, Republican leaders in the House and the Congressional Black Caucus apparently have already struck a deal that would renew the expiring provisions for another 25 years in virtually the same form as today. And in the Senate, identical legislation has 22 co-sponsors.

So what's not to love about the rare spirit of bipartisanship (or wish to put this interest behind them in an election year) which apparently has overtaken Congress on this issue? I have two concerns - both serious.

Why the Supreme Court Might Strike Down the Renewed Preclearance Requirement

First, there is a very serious risk that the Roberts Court would strike down a renewed section 5 as unconstitutional.

The Supreme Court, as part of its "New Federalism" jurisprudence, has recently been limiting the ability of Congress to pass civil rights laws. Beginning with the 1997 case of City of Boerne v. Flores, the Court has held that Congress must produce a strong evidentiary record of intentional state discrimination to justify laws that burden the states. In addition, whatever burden is placed on the states must be "congruent and proportional" to the extent of the violations.

Under this standard, Congress could well have an evidentiary problem with a renewed section 5, for several reasons:

First, because the Act has been so effective as a deterrent it will be hard to produce enough evidence of intentional discrimination by the states so as to justify the extraordinary preclearance remedy for another 25 years. Although the House record for VRA renewal runs for literally thousands of pages, there's just not that much in it that shows that the states covered under section 5 are engaging in patterns of intentional racial discrimination.

Indeed, DOJ rarely objects to any voting changes submitted for preclearance anymore. From 1998-2002, DOJ objected to a meager 0.05% of preclearance requests.

Second, the House record seems to show that the problems that do continue to exist occur across the nation, not just in the covered jurisdictions. So the Court may insist on evidence that the covered jurisdictions present greater problems than the rest of the nation to justify the geographically-selective preclearance remedy.

Some observers argue that the Court will give a pass on Congress's requirement to produce evidence precisely because it understands that section 5 has been such a good deterrent - and thus that the absence of evidence is only proof of the effectiveness of the law.

I hope that this theory is right, but I am not confident that the new Supreme Court would be inclined to so hold. The problem with such a theory is that it would justify preclearance for an undetermined amount of time into the future Under this theory, how would we ever know if the law was no longer necessary?

In addition to the problem of producing enough evidence of intentional state discrimination, there is also the tailoring issue. The current Act uses a formula for coverage based on the jurisdiction's voter registration or voter turnout and its prior use of a discriminatory test or device for voting, such as a literacy test.

Unwisely, the proposed amendments would not update this formula in any way - even though the Act relies on data from the 1964, 1968, or 1972 elections. Those voter turnout figures--and particularly, the figures for voter turnout in minority communities--bear little resemblance to turnout figures today

Though the Court's most recent "New Federalism" case, Tennessee v. Lane, seems to have eased the burden a bit when it comes to the Court's requiring Congress to produce enough evidence of state misconduct Justice O'Connor provided the swing vote in that case. In the Roberts Supreme Court, as NYU Professor Sam Issacharoff has noted, Justice Kennedy's vote is likely to be pivotal, and it is not at all clear that Kennedy would find a 25-year renewal of section 5, using old turnout numbers, to pass constitutional muster.

The Urgent Need to Update the VRA

Putting aside the constitutional issue, there's another problem: The law needs to be updated to fit the Twenty-First Century.

If Congress were designing legislation to help minority voters today, it likely wouldn't single out those jurisdictions covered by section 5 as the place where minorities need the most help. It might target Florida and Ohio. It certainly would target voter identification requirements that put financial burdens on poor and minority voters. It might do something about the racially discriminatory impact of felon disenfranchisement laws. But it wouldn't create an act so geographically limited, and it probably wouldn't limit DOJ's scrutiny to changes in voting procedures. Existing voting procedures can also be racially discriminatory.

In addition, recent experience with DOJ shows that it might be making some decisions on preclearance with an eye on partisan politics. For example, documents leaked to the Washington Post show that political appointees at DOJ overruled career attorneys on whether or not to preclear the controversial Texas redistricting and Georgia voter identification laws. Some see these preclearance decisions as benefiting Republicans.

Accordingly, Congress - if it reviewed the VRA with an eye to fairness - might want to consider whether aggrieved minority voters should be able to appeal DOJ grants of preclearance. The Supreme Court interpreted the current VRA to prevent such appeals.

Legislation This Important Shouldn't Take Risks on Court Invalidation

In the end, the "deal" in place in Congress appears based on a roll of the dice - with Congress betting that the Roberts Court wouldn't dare invalidate section 5 of the Voting Rights Act.

That bet may well be wrong, as I indicated above. It's true that it would be bad public relations. for the Court. But Courts don't worry about P.R. anywhere near as much as legislators do.

The common wisdom is that if the Court did strike the measure down, Congress would then pass a more narrowly tailored law. So, according to this argument, if a narrowly tailored law is what the Court insists upon, we'll get it one way or the other. But it is not clear that the political coalition that could pass the renewed VRA in its current form would reach agreement on a narrower VRA after Supreme Court invalidation.

In addition, and crucially, these arguments ignore the effect of having a decision on the books that partially overrules the VRA. As I recently told the Senate Judiciary Committee, a Supreme Court holding striking down section 5 of the Act could pave the way for striking down the (now more important) section 2 of the Act - under which key voting rights litigation now proceeds, and other civil rights laws as well. If section 5 is held to exceed Congressional power, might other civil rights laws be held to do the same?

Congress Should Fix the VRA Now, and Not Risk Court Invalidation

It would be far better for Congress to undertake a serious discussion now about how to fix section 5, than to take the risk of leaving this matter to a potentially hostile Court.

One of the simplest and best fixes would make it easier for jurisdictions that already have made great progress when it comes to protecting minority rights to "bail out" from preclearance requirements. The law contains a bailout provision now, but that provision can be streamlined and improved in ways that will improve the chances of its being upheld by the Supreme Court.

The VRA has been an unqualified success in remarkably increasing minority voter registration and turnout, increasing the number of African-American and Latino elected officials, and increasing the ability of minority voters to effectively exercise their right to elect representatives of their choice.

Congress should spend the time to ensure this laudable, effective law will, when renewed, continue to serve its important function of continuing to protect minority voting rights in this country. That means, among other things, making sure that it that will pass constitutional muster in the Supreme Court.