No, the Voting Rights Act Is Not Dead

Analysts who assume Congress won't pick up where the Supreme Court left off are forgetting the law's difficult fight just seven years ago.

Demonstrators rallied outside of the Supreme Court during oral arguments in Shelby County vs. Holder in February. (Evan Vucci/Associated Press)

When the Supreme Court handed down its verdict on the Voting Rights Act on Tuesday, analysts had little doubt about what it meant: By sending the landmark civil-rights legislation back to Congress, the Court had essentially acted to kill it.

"In practice, in reality, it's probably the death knell of this provision," Tom Goldstein, the publisher of SCOTUSblog, told NBC News, a verdict echoed by numerous other commentators. While Congress reauthorized the act by huge bipartisan majorities in 2006, "such action seems unlikely" today, the Wall Street Journal noted, because "congressional Republicans today are more skeptical of measures they believe would extend federal power."

What the Court actually did was invalidate Section 4 of the law, which lays out the jurisdictions -- mainly, but not all, in the South -- that must get federal approval for any changes to voting-related laws. The Court didn't touch Section 5, the part that imposes the so-called "preclearance" requirement; it just told Congress to better formulate and justify the areas affected by it. But the analysts believe that killing Section 4 will, in practice, constitute a death blow to Section 5, because conservative Republicans in Congress will block passage of a new bill that addresses the Court's objections.

If that is indeed the case, it would be a powerful testament to changes in Congress and the Republican Party in just a few years. Think about it: In 2006, when the VRA was reauthorized 98-0 in the Senate and 390-33 in the House, Republicans controlled the presidency and both houses of Congress. The Bush Administration was taking flak for everything from Hurricane Katrina to the Jack Abramoff scandal. Opposition to the Iraq war was hitting a peak, and Donald Rumsfeld would resign a few months later. These weren't the halcyon days of bipartisan comity a la Ronald Reagan and Tip O'Neill. This was seven years ago.

The idea that the Voting Rights Act reauthorization simply sailed through Congress back then is wrong, say advocates who worked on the 2006 passage. It was a long, tough fight that succeeded in difficult circumstances, despite opposition from many conservative and Southern legislators. The Georgia delegation was in open revolt; Rep. Steve King of Iowa crusaded against it. But the bill eventually did succeed, and that fact gives civil-rights advocates hope that they can do it again.

"There was a very robust debate seven years ago," said Julie Fernandes, who led the push for the bill for the Leadership Conference on Civil and Human Rights in 2006. "There was a lot of back and forth. That's what the legislative process is all about. In the end, everyone pulled together -- from both parties -- and renewed key voter protections."

Then as now, congressional inaction was a possibility. The Bush Administration showed little willingness to get the reauthorization done; it fell to the civil-rights community to convince a GOP-dominated Congress that allowing the bill to expire would be seen as acting to kill it. But a few influential Republicans championed the bill, and the rest went along rather than create the ugly spectacle of their party standing in the way of civil-rights legislation.

Rep. Jim Sensenbrenner of Wisconsin, a Republican who then chaired the Judiciary Committee, took the lead in rounding up support from the GOP in 2006. Sensenbrenner had worked on a previous renewal of the law in 1982 and believed strongly in its necessity. Today, Sensenbrenner again seems poised to advocate forcefully for Republicans to support a fix to the legislation. "The Voting Rights Act is vital to America's commitment to never again permit racial prejudices in the electoral process," Sensenbrenner said in a Wednesday statement. "My colleagues and I will work in a bipartisan fashion to update Section 4 to ensure Section 5 can be properly implemented to protect voting rights, especially for minorities."

Sensenbrenner is not alone. Two other Midwestern Republicans, Sean Duffy of Wisconsin and Steve Chabot of Ohio, also have expressed support for passing a fix to the legislation in response to the Court, according to The Hill. House Majority Leader Eric Cantor, meanwhile, said he hoped his colleagues would "put politics aside ... and find a responsible path forward that ensures that the sacred obligation of voting in this country remains protected."

There are, of course, other lawmakers less enthusiastic about the prospect of taking up a racially charged intraparty battle. The Court's argument that conditions have changed for minorities in the South since the days of the civil-rights movement nearly 50 years ago has provided a line of reasoning for lawmakers to claim that the act is no longer needed. Mitch McConnell, the Senate minority leader from Kentucky, responded to the decision by saying, "I do think America is very different today from what it was in the 1960s." Senator Jeff Sessions of Alabama said the Court decision "was good news, I think, for the South, in that [there was] not sufficient evidence to justify treating them disproportionately than say Philadelphia or Boston or Los Angeles or Chicago."

But even Sessions, who voted for reauthorization in 2006, stopped short of saying he'd oppose a new version of the Voting Rights Act today. Civil-rights advocates now are pushing to frame the court decision as an affront to Congress that members of both parties should feel obligated to respond to. On Tuesday, Wade Henderson, president of the Leadership Council on Civil and Human Rights, called the Court decision "a slap at congressional authority and power" and urged Congress not to "roll over and accept that." Some on the left seem to believe that the Tea Party contingent in the House is so rigidly ideological that it is impervious to charges of insensitivity. But in February, when the House's reluctance to pass an extension of the Violence Against Women Act threatened to become an embarrassing spectacle for the party, the legislation was quickly and overwhelmingly passed.

It's a mistake to see minority voting rights in purely partisan terms, advocates note. In fact, by packing minorities into districts to increase their clout, the Voting Rights Act often hurts Democrats in Southern states. Democrats along with Republicans had to compromise on the 2006 legislation.

Plenty of supporters told civil-rights advocates they were crazy to think they could get legislation through a gridlocked, Republican-controlled House and Senate back in 2006, noted Fernandes. "There was pessimism about the prospects for bipartisanship in 2004, when we first started working on the reauthorization," she told me. "It turns out it wasn't true at all. These guys worked together in a bipartisan way only seven years ago. We need to remind people that there are legislators from both parties who care deeply about protecting the right to vote." For civil-rights advocates, the worst outcome would be to give up the fight for a new Voting Rights Act before it's even begun.