On Voting Rights, Discouraging Signs From the Hill

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.

The Senate Judiciary Committee Hearing

Sen. Patrick Leahy (D-Vermont) gets credit for trying. As the chairman of the Senate Judiciary Committee said to his audience Wednesday, he rushed to hold a hearing on voting rights act before Congress' August recess to set the stage for more personal and private conversations among lawmakers and their constituents (and among lawmakers) when the session recesses. The idea is for members of Congress to gauge the temperature of voters and then return to Washington in September ready to introduce, debate and enact legislation that answers Shelby County.

The limited goal of the hearing explains why it generated so few insights. First, Rep. John Lewis (D-Georgia), the civil rights icon, told his fellow lawmakers what they should already know about today's voter suppression laws. "It is the same face with a different mask," Rep. Lewis said, "and we cannot rest until every variation of the seed has been destroyed, and the will no longer exists." And then, directly repudiating the Court in Shelby County, he said this: "Simply said, we are not there yet, and we have seen the clock turn back before."

The next witness Wednesday was Rep. James Sensenbrenner (R-Ohio), representing the pre-Tea Party wing of the Republican Party. Long an enabler of the Voting Rights Act, Rep. Sensenbrenner also warned against the Court's premature declaration of victory. "Voter discrimination still exists," he told his colleagues, "and our progress toward equality should not be mistaken for a final victory." Next to testify came Luz Urbaez Weingberg, an Hispanic office-holder in Florida who could represent the future of the Republican Party (if the party doesn't continue to alienate her with its attitude towards voting rights). 

What Weinberg told the Committee is the core of the political battle to come: "The surviving Sections of the VRA will not be fully effective in protecting me and many communities in Florida," she said. "Many of the election laws and policies I have discussed today are highly likely to continue in force or to reappear on the state legislature's agenda, particularly now that the state is free to immediately implement any and every policy it adopts." A Hispanic Republican woman wants Section 4 fixed. Seems to me that should guarantee that it will be so. But in this political atmosphere, with this House of Representatives, nothing is guaranteed.

The House Judiciary Committee Hearing

Predictably, there was a much different vibe today at the House Judiciary Committee hearing. There was complete balance among the witnesses -- two conservatives and two progressives -- but as they began to speak the gulf described above became clear. The two progressives told panel members that Section 4 can and should be updated. The two conservative witnesses, however, did not. And so the hearing on the House side focused as much upon whether the federal law ought to be revised as it did upon how to revise it in the most effective and lawful fashion. That dichotomy, I fear, is going to linger throughout this political fight over the future of the law.

The Committee's choice of witnesses surely was intentional -- no Hispanic Republican woman talking up Section 4 on this panel! -- but in many ways the selection is a gift to the nation because it shows us more clearly what the coming fight will look like. Advocates like von Spakovsky and J. Christian Adams aren't interested in fixing Section 4, in coming up with a new "coverage formula," or in restoring protections to minority voters. We know this is so because they have said so, over and over again, and because they said so again on Thursday. Their appearance reveals the outer fringe of the debate and guarantees that there will be legislative support for no meaningful Congressional response to Shelby County.

The first witness Thursday was Adams, a longtime conservative critic of many facets of the Voting Rights Act, whose claim to fame as a federal lawyer seems to be his penchant for accusing black people of discriminating against whites. Precisely how he is going to help Congress productively respond to Shelby County is unclear. On the day that case was decided, Adams apparently wrote this: "Now, federal preclearance of state election procedures seems to be forever dead and buried. While some Congressional Republicans had vowed to enact new legislation to "fix" any coverage formula deemed unconstitutional, the Court opinion today offers almost no room to do so. They would have to decide what's more important: the Republican Party, or the Constitution?"

The second conservative witness was von Spakovsky, whose credibility in the area of "voter fraud" was largely destroyed last fall by Jane Mayer in a brilliant piece in The New Yorker. Von Spakovsky thankfully didn't focus much on that during his testimony but still had the gumption to tell lawmakers that he believes there is no need to fix the Voting Rights Act in the wake of Shelby County. I don't know precisely who Congress ought to listen to fix Section 4. But if enough members of Congress listen to von Spakovsy and Adams there is no chance the provision will be updated. And you could argue that's precisely what this movement, including the Chief Justice, had in mind all along.