On Voting Rights, Discouraging Signs From the Hill

Recent Congressional hearings on the Voting Rights Act signal an ugly fight ahead to restore key voter protections.
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The scene outside the Supreme Court on June 25, 2013, after the ruling that invalidated a section of the Voting Rights Act. (Jonathan Ernst/Reuters)

The story of voting rights in the year 2013 -- how the five conservative justices of the United States Supreme Court undercut them last month and what Congress must do to restore them now -- is really the story of America itself. There has been much premature self-congratulation mixed in with a great deal of denial and dissonance. There has been a widening gulf between promise and reality. Patriotic words of bipartisanship have flowed, promises of cooperation have oozed, but there are few rational reasons to believe that the nation's representatives will quickly rally together to do what needs to be done.

The premature self-congratulation came from the Court itself. Less than one year after Sections 4 and 5 of the Voting Rights Act stymied voter suppression efforts in the 2012 election in Florida, Texas and South Carolina, Chief Justice John Roberts in his opinion in Shelby County v. Holder heralded the "great strides" the nation has made in combating such suppression and the fact that "blatantly discriminatory evasions of federal decrees are rare." Not so rare. Before the sun set that day, June 25th, officials in Texas and North Carolina had moved forward with restrictive voting measures that had been blocked by the federal law.

The denial and dissonance come from Congress. Federal lawmakers are in denial if they believe they can enact a new "coverage formula" for Section 4 with the same bipartisan fervor with which they endorsed the old formula in 2006. The clearest evidence of the ugliness of the coming fight was the appearance Thursday, at a House Judiciary Committee hearing on the Voting Rights Act, of Hans von Spakovsky, the nation's foremost tribune of the voter fraud myth. Chairing that hearing? Rep. Trent Franks (R-Ariz.), one of only a few dozen federal lawmakers who voted against the Act's re-authorization in 2006.

The distraction was evident Wednesday, also on Capitol Hill, when the Senate Judiciary held a brief hearing on the Voting Rights Act. Ranking Member Charles Grassley (R-Iowa) stayed just long enough to praise voter identification laws (which are being employed nationwide to suppress largely Democratic votes). Sen. Amy Klobuchar (D-Minn.) extolled the virtues of same-day voter registration. And one of the witnesses, conservative attorney Michael Carvin, went so far as to suggest in comments and answers that Section 2 of the Voting Rights Act, which was left untouched by the Shelby County ruling, also is unconstitutional.

So long as lawmakers focus upon protecting against voter fraud that doesn't exist, there will be no quick remedy for the federal law. So long as lawmakers downplay the disastrous impact of restrictive voter identification laws upon the poor, the elderly, and the ill, there will be no urgency to restore what the Court has eliminated. So long as officials undercut the premise of the Voting Rights Act by contending that federal law should be "color-blind," and that the Fifteenth Amendment must bow to the Tenth Amendment, we are in for an ugly fight if Section 4 is to be revised.

In a perfect world, Congress would acknowledge what we all see -- that the current generation of voter suppression efforts is not limited to the South. The new "coverage formula" under Section 4 of the law would thus expand, not restrict, federal oversight over such practices. It would still block racially discriminatory voting practices now occurring in those jurisdictions long covered by the voting law. But it would also block partisan ruses occurring in states that aren't -- like Ohio and Pennsylvania. Indeed, this very week a trial is underway over the fate of Pennsylvania's restrictive new photo identification law. Our federal voting law should be clear: no state anywhere can get away with the suppression attempted before the 2012 election. 

A nationwide Section 4, or something akin to it, not only would "update" the coverage formula as the Chief Justice wants, it also would vitiate one of the Court's main arguments in Shelby County -- that it is constitutionally unfair to treat states differently from one another when implementing civil rights legislation under the 15th Amendment. The bad news is that any such expansion of federal oversight over state and local voting practices would likely trigger all of the same federalism arguments we've just litigated (and litigated and litigated) in the fight over the Affordable Care Act (and the Defense of Marriage Act).

Why am I so gloomy? As this week's hearings remind us, the Supreme Court is not the vanguard of the conservative movement to neuter civil rights legislation by declaring victory over racial discrimination in voting. There are those to the right of even the Chief Justice and, to them, Shelby County is just the biggest victory (yet) for a movement that has been working for decades, even before Roberts was a young Reagan Administration lawyer arguing against Section 4 of the act, to accomplish the demise of this section of the law. Now, with Shelby County in their pocket, with a Supreme Court skeptical of the need for even the most basic voter protections, and with the House in nihilism mode there is no reason to believe this movement is in a mood to compromise over voting legislation.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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