One of the most confounding things about today’s Supreme Court is that many justices regard the right to make political contributions more worthy of protection than the actual right to vote.
At least, that’s the only plausible conclusion, considering the same five justices voting in favor of 2010’s Citizens United decision also overturned Section 4 of the Voting Rights Act in Shelby County v. Holder last year.
The case centers around the issue of preclearance, the idea that certain jurisdictions, many of them in the South, must seek approval from the federal government before making changes to voting laws.
SCOTUS did not strike down Section 5, which determines preclearance, but without Section 4, no jurisdiction is subject to preclearance unless Congress acts. In other words, the jurisdictions participating in the most egregious voting discrimination can no longer be called out.
The five-justice majority argued that because voter turnout among minorities improved, preclearance was no longer needed. This argument ignores the fact that the provision was invoked more than 700 times between 1982 and 2006, helping to keep that turnout high.
Granted, the Supreme Court is not the only body curtailing the right to vote. Many states have made cuts to early voting hours, driving a presidential panel assembled to improve the voting process to call for the restoration of these hours. But losing Section 4 of the Voting Rights Act was still a significant blow.
The Supreme Court did give Congress an out — they could simply rewrite the legislation based on contemporary data. A bipartisan group of legislators has done just that, introducing a new bill just prior to Martin Luther King, Jr. Day.
The question now is: Where does the bill go from here?
What The Bill Does
As noted by Mother Jones’ Kevin Drum, the bill would take Chief Justice John Roberts up on his offer, altering the formula for preclearance so that any state with a certain number of violations would be subject to extra scrutiny.
There are other upsides as well, including requiring states to provide advance notice of changes to election procedures and giving plaintiffs an easier way to block potentially discriminatory laws in court.
As far as the issue of preclearance goes, this law does seem to satisfy the Supreme Court’s requirement that contemporary data be used to scrutinize certain jurisdictions. It is a fairer system and one that can prevent malfeasance in states not traditionally regarded as hotbeds of discrimination, while keeping those that are under a microscope.
What It Doesn’t Do
In an effort to win bipartisan support, the bill does include some carve-outs for voter ID laws. Under the law, the Justice Department could challenge voter ID laws as discriminatory, but a state could not be “bailed-in,” placed under the preclearance requirements, simply because the government challenged them. (As Ari Berman of The Nation notes, court judgments against those laws would count as a violation that could get a state “bailed-in.”)
Supporters of voter ID laws say they are designed to protect against voter fraud; this would be more convincing if voter fraud was not incredibly rare. In reality, voter ID laws are more likely to depress voter turnout, mostly among groups that tend to vote Democratic.
Among the critics of voter ID laws is Judge Richard Posner. In 2007, Posner wrote a decision upholding Indiana’s voter ID laws in 2007 only to issue a mea culpa last year. The fact that Posner has soured on these laws should be somewhat telling. Carve-outs may have been necessary to win bipartisan support, and they don’t prevent any challenges to voter ID laws, but that does not make them any better for democracy.
What Its Chances Are
Can a bipartisan voting bill pass? Drum is pessimistic, arguing that, while the last extension in 2006 passed with overwhelming support, “The GOP has simply changed too much since 2006.”
But there is hope. Senator Patrick Leahy (D-VT) indicated the bill has enough GOP support in the Senate to avoid a filibuster, though at least one Democrat has called for increased protections.
The bill’s fate will likely depend on how many Republicans decide it’s worthwhile to reach out to the minority voters who have benefited from the Voting Rights Act in the past.
Drum argues there’s not much incentive given how much minority groups have shifted toward Democrats, and for a House member whose district is heavily gerrymandered, that may be true.
But for a Republican who wants the GOP to retake the Senate in 2014, or win the White House in 2016, there’s a strong case for supporting a legislative fix to soften the GOP’s image. In any case, this bill remains the best chance yet to right one of the Supreme Court’s wrongs.