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July 01, 2014

Voting law changes raise concerns after Shelby County

Voting law changes adopted by states in the wake of last year’s Supreme Court ruling in Shelby County v. Holder, 570 U.S. ___ (2013), are raising the specter of potential voting discrimination.

In response, the ABA is urging enactment of S. 1945, a bill that would restore and strengthen Voting Rights Act (VRA) provisions. 

The court’s 5-4 decision, issued last June, struck down the formula in Section 4 of the VRA that determined which jurisdictions  had a history of discriminatory voting practices. The designated jurisdictions were required under Section 5 of the act 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 decision left in place the provisions in Section 2 of the act that allow litigation to be brought against jurisdictions after a voting change is already in place.

“The Voting Rights Act has been critical to the expansion of our democratic franchise to all eligible citizens, and S. 1945 will restore a key component to the act’s arsenal of tools to combat voting discrimination,” ABA President James R. Silkenat wrote to the Senate Judiciary Committee on June 25, the day the committee held a hearing on the legislation. Silkenat explained that the remedy in Section 2 alone “is not sufficient to prevent the fundamental harms to representative government that voting discrimination causes” and that litigation under Section 2 is “extremely complex, time consuming and costly.”

He cited a recent report from the Leadership Conference on Civil and Human Rights outlining more than 148 separate instances of violations of the VRA’s antidiscrimination provisions since 2000. Another report by the Brennan Center for Justice found that 22 states have passed new voting restrictions since 2010.

S. 1945 and its House companion bill, 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.

Silkenat said the ABA supports the legislation because it includes a new, flexible coverage formula that would be updated annually to require preclearance for all changes in places with numerous recent voting rights violations. The legislation, he said, also would create new nationwide transparency requirements to help keep citizens informed about voting changes in their communities and would continue the federal observer program.

During the hearing, which was chaired by bill sponsor Sen. Patrick J. Leahy (D-Vt.), Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund Inc., testified that it is “clear that political entities previously covered by Section 5 have begun to use the Shelby County decision as license to enact discriminatory measures across the full panoply of electoral processes.” She urged Congress to move quickly to enact S. 1945.

Also supporting the legislation before the committee were Texas State Sen. Sylvia R. Garcia and Francys Johnson, president of the Georgia State Conference of NAACP Branches.

Other witnesses, however, opposed the bill. Michael A. Carvin, a partner at Jones Day law firm, argued that Section 5 of the Voting Rights Act was always intended to be a temporary and limited supplement to Section 2, which he said is more than adequate to address any unconstitutional discrimination. Abigail Thernstrom, adjunct scholar at the American Enterprise Institute, testified that the statute today needs no updating. “Its permanent provisions provide ample protection against electoral discrimination,” she said.

Meanwhile, Leahy maintained that his legislation “updates and strengthens the foundation of the original law to combat both current and future discrimination” and “does so in a way that is based on current conditions and recent history.”

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