If the push to rework the Voting Rights Act turns into a partisan shouting match, civil rights activists know they’ve already lost.
From that perspective, this week’s mostly low-key hearings in the House and Senate showed the potential for a return of federal pre-clearance for new voting laws in some form. But the careful comments of key U.S. House Republicans on Thursday again revealed a sentiment that the current tools to prevent voting discrimination – even without a pre-clearance formula, yanked out by the U.S. Supreme Court last month – are enough.
“Now, it’s important to note that under the Supreme Court’s decision in Shelby County (v. Holder) other very important provisions of the Voting Rights Act remain in place, including Sections 2 and 3,” said House Judiciary Chairman Bob Goodlatte, R-Va.
Goodlatte, Constitution subcommittee chairman Trent Franks, R-Ariz., and their allied witnesses emphasized the ability to challenge a discriminatory voting law in court under Section 2 and federal courts’ ability to impose pre-clearance on jurisdictions that pass intentionally discriminatory voting laws under Section 3.
Since 1965 Georgia and other states and jurisdictions with a history of overt discrimination had to submit every voting law change to the federal government for pre-approval before it could be enacted. The Supreme Court decided in June that the formula used to require pre-clearance in those areas was unconstitutionally outdated.
The court said Congress could update the formula if it chooses. This week’s hearings were its first steps toward that possibility. Key House members and senators said they will work over the August congressional recess to write a bill.
“We must use this opportunity to promptly craft a legislative solution that enables the Justice Department to effectively enforce the rights of minority voters,” said Rep. John Conyers of Michigan, the top Democrat on the House Judiciary Committee.
Any legislative effort will be shaped in Judiciary, and neither Goodlatte nor Franks, who chaired Thursday’s subcommittee hearing, ruled out a new law.
“If there is a bill, I would obviously want to see what the best ideas and concepts are,” Franks said after the hearing.
Two of the four witnesses Thursday argued that Congress need not act. One of them was Hans von Spakovsky, a scholar at the Heritage Foundation and former Fulton County GOP chairman.
Existing law “is more than sufficient to stop those rare instances of voting discrimination when they occur,” said von Spakovsky, a former Justice Department civil rights division official in the Bush administration.
A good chunk of the discussion centered on the Section 3 “bail-in.” Advocates including Laughlin McDonald of the ACLU, in a recent interview with the AJC, have said a widespread court-ordered pre-clearance system could be more politically palatable.
For now, the legal bar for Section 3 is prohibitively high: A court must find intentional discrimination, not merely that a law has a discriminatory effect.
Robert Kengle, of the Lawyers’ Committee for Civil Right Under Law, argued at Thursday’s hearing that Section 3 is an inadequate “after-the-fact remedy because it requires the court first to find severe violations.”
A day after testifying in the Senate, Atlanta Democratic U.S. Rep. John Lewis watched Thursday’s hearing as a spectator. Afterward he said he found a promising signal from Goodlatte: Instead of asking questions, Goodlatte offered to defer to Rep. James Sensenbrenner, R-Wis., who is outspoken in his desire for a new pre-clearance formula.
“I trust him,” Lewis said of Sensenbrenner. “I think we have to come up (with a bill) together. It must be a bipartisan proposal. We’ve got to do it together.”