Sen. Patrick J. Leahy (D-Vt.) and Rep. Jim Sensenbrenner (R-Wis.) introduced bipartisan legislation in the Senate and House Jan. 16 that seeks to strengthen the Voting Rights Act of 1965 in light of the June 2013 Supreme Court decision in Shelby County v. Holder, 570 U.S. ___ (2013).
The 5-4 decision struck down the formula in Section 4 of the act that defined jurisdictions with a history of restricting voting rights. Those jurisdictions – all or part of 16 states – were required under Section 5 to submit any proposed changes in their voting procedures for preclearance by the Department of Justice or a three-judge panel of the U.S. District Court of the District of Columbia. The court reasoned that, even though there is no doubt that voting discrimination still exists, the coverage formula, while rational 50 years ago and reauthorized in 2006 as part of bipartisan legislation, was based on “decades-old data and eradicated practices” such as literacy tests and low voter registration and turnout.
The new legislation, S. 1945 and H.R. 3899, would create a Section 4 formula that would allow federal courts to order preclearance if they determine that a state has adopted voting policies that have the effect of discriminating against minorities. The bills also would establish new rules automatically triggering preclearance if a state is shown to have committed five or more voting rights violations during the past 15 years. Four states already fall under that preclearance requirement: Georgia, Louisiana, Mississippi and Texas.
The bills also would strengthen Section 3 of the act, which allows the federal government to “bail in” jurisdictions not covered by Section 4 to federal supervision if plaintiffs show evidence of intentional voting discrimination. Under the new Section 3, any violation of the Voting Rights Act or other federal voting rights law, intentional or not, could be grounds for a bail-in. The bills also would make it easier to gain preliminary injunctive relief from a change in voting practices.
ABA President James R. Silkenat commended the bipartisan effort by Sensenbrenner and Leahy as well as the numerous cosponsors from both parties.
“The Voting Rights Act has given generations of Americans confidence that their right to vote will be preserved,” he said. “The undeniable history and continued legacy of race-based and politically motivated voting discrimination demands that the ballot box be guarded. Congress now has the opportunity to modernize the decades-old Voting Rights Act and continue the important contribution to America’s voting public by this landmark civil rights law.”
The ABA adopted policy in August 2013 urging Congress to enact legislation to address the “severe blow” that the Supreme Court decision had on voting rights.
The association emphasized in an amicus brief to the court that although litigation may be brought against jurisdictions under Section 2 of the act, such litigation after a voting change is already in place is extremely complex and costly.