Renewing voting rights — with Roberts in mind
Roberts, in his dramatic voting rights ruling last month, said Congress has a duty to update Jim Crow-era civil rights laws for a post-Jim Crow world. In Shelby County v. Holder, the Supreme Court basically found that Congress committed an unforced error by renewing the Voting Rights Act without updating its formula for patrolling discrimination against voters.
Now Congress can finish what the court started. As the Senate holds its first hearing in response to Shelby on Wednesday, with the House of Representatives due to hold one on Thursday, there are indications that a precise piece of legislation could pass even this divided Congress. Here are two strong ways to renew the Voting Rights Act.
A SUPREME COURT PLAN
The first thing Congress can do is update the law’s formula for hunting down discrimination. A clear bill can begin by answering the core question in Roberts’ opinion: Is there a better baseline for discrimination than the literacy tests and voter turnout numbers from the 1960s?
An updated formula could use more recent barriers to the ballot, beyond the tests in the original law, and a more sophisticated measure of recent voter turnout. It could assess not only if a majority of voters are turning out — the original metric — but whether hurdles to voting have an unequal effect on certain communities. For example, do changes to voter requirements, or polling access, have a disparate impact on turnout?
This legislative approach has three virtues.
It directly addresses the court’s concerns in Shelby. It matches the underlying law. And it appeals to a broad constituency. After all, an unusually large majority of Congress backed reauthorization of the underlying voting rights law in 2006.
A renewal built on Shelby could unite the civil rights advocates and followers of Roberts’ outlook. This “Supreme Court Plan” could easily be called “The Roberts Plan” — and why should Republicans oppose a Roberts update to legislation they backed seven years ago?
Then there is a bolder approach that Congress should also consider.
A NATIONAL EQUALITY STANDARD
A holistic way to address the court’s reasoning is to develop a formula that combats discrimination in an equal way across the entire country.
This approach could build on a key plank of the Voting Rights Act that is still standing, Section Two, to assess what areas require national oversight.
Section Two is crucial because, under the original law, voter discrimination in most of the country is only addressed after a violation occurs. If a county cancels early voting in predominantly black neighborhoods, for example, it can only be taken to court under Section Two after such an infraction occurs.
The same abuse would only be stopped in advance, under the Section Four formula rejected by the court, when it occurs in a region with historic discrimination.
That two-tiered approach is logical. Local governments that rarely discriminate get the benefit of the doubt, while those with a history of discrimination need a permission slip. That was the whole point — the Voting Rights Act shifted “the advantage of time and inertia from the perpetrators of [voter discrimination] to its victims,” as Chief Justice Earl Warren explained in a 1966 ruling. (He was rejecting the first attempt by a state under federal jurisdiction to overturn that kind of oversight.)
Instead of using a formula to select oversight for certain areas in advance, a national equality standard would only trigger supervision for places where local governments continue to practice voter discrimination. Every part of the country would be eligible. Every part of the country would also get a fair start.
Here’s how it would work. If courts find that a state is repeatedly discriminating under Section Two of the Voting Rights Act, then the state would be placed under national supervision. Congress could set a trigger, so if federal courts ruled that a specific state practiced, say, two incidents of discrimination in a decade, then it would automatically be placed under supervision. That supervision could last for the following decade, with good conduct, or longer if infractions continued.
This standard is based on current law, since local governments would just be held to the same standards they already face under the parts of the act that are still standing. (In essence, they would face the same rules under Section Two, but more stringent oversight for repeated infractions — call it Two Strikes and You’re In.)
Just like today, any infraction would be assessed by local federal judges — an independent and nonpartisan process.
There are several virtues to this standard.
It is uniform, because it treats all areas fairly — with the same rules and the same potential for oversight for every part of the country.
It is dynamic because the standard considers recent instances of discrimination, not a set of geographic targets or a view of the legacy of Southern segregation.
It is narrowly tailored — a constitutional requirement — because it only adds policing and supervision to areas where the illegal activity is cropping up. States would know how many infractions would lead to supervision, a more predictable approach than the (rarely-used) judge-ordered supervision under Section 3.
It is also egalitarian and conservative, since the standard pursues equal treatment of voters along with equal treatment of the states. (That’s been a priority for federalists and Roberts.)
This standard uses the independent findings of district judges to apply oversight — not decisions by federal officials in Washington.
A standard that is so fair and uniform should be appealing to Congress, which is often paralyzed by the politics of parochialism, and the Supreme Court, which rested its Shelby decision on violations of “equal sovereignty” of the states. (More on that in a minute.)
As a final practical matter, it’s worth looking at how this standard would work on the ground. Historically, there have been more enforcement actions for voter discrimination in the covered regions, which are largely in the South. Voting rights violations were found there at a far higher rate than the rest of the country — 88 percent versus 58 percent. (That’s according to a study of more than a thousand cases from 1957 to 2006, which history professor Morgan Kousser recently documented for Reuters.)
If those trends continue, the standard would mean federal oversight for some Southern states covered under the old formula. But it’s up to them. If they avoid voting discrimination, they will be off the hook.
If states that have never faced pre-clearance are found to practice increasing discrimination — for example, like in Ohio or New Mexico — they would face federal oversight under the standard.
After all, it was just 13 years ago that the Supreme Court invalidated Hawaii’s attempt to restrict voting eligibility by ethnicity. If a non-Confederate state repeatedly pursued such rules, why shouldn’t it also be subject to advance oversight?
The safest way to renew voting rights is for Congress to apply both these updates – the new data that the Shelby decision requested, and a dynamic, equal standard for the future. If courts later strike down one of the standards, the other is a fair alternative.
Now, some argue that renewing the Voting Rights Act is futile, because a cynical Supreme Court will reject whatever Congress does. The court’s real agenda, according to this thinking, is to demolish the civil rights laws with a scalpel when possible, and an AR-15 when necessary.
A candid version of this theory actually appears in the Shelby concurrence by Justice Clarence Thomas, who argues the court should declare all federal supervision unconstitutional, rather than “needlessly prolonging” its “demise.”
The civil rights protesters always took the Constitution more seriously than many politicians and judges at the time. Martin Luther King Jr. imagined what the Bill of Rights and the reconstruction amendments would do if they actually meant what they said — long before the legal establishment saw that as a practical possibility.
By out-dreaming, out-thinking and out-working those elites, King ultimately moved the public and legal consciousness closer to true equality.
So it may be easy — and even “savvy,” by Washington’s semi-sociopathic standards — to declare that voting rights renewal is simply unlikely to pass Congress. And, if passed, unlikely to survive another court challenge.
But the reality is more complicated.
No one knows what will happen if people actually try to renew one of the most famous and celebrated laws Congress has ever passed — a law that literally defeated violence with peaceful protest, and supplanted apartheid elections with legitimate democracy.
No one knows how the Roberts Court will react — with an eye on the nation and its own legitimacy — if faced with legislation that confronts today’s realities and precisely addresses the very issues raised in Roberts’ majority decision.
A movement that takes precedent seriously, and takes the Constitution seriously, could wind up helping ensure that the court takes this process seriously as well.
Overruling that law might feel too obvious, too “activist,” even for this assertive court.
PHOTO (Top): Chief Justice John Roberts on the front plaza of the Supreme Court in Washington, Oct. 1, 2010. REUTERS/Larry Downing/Files
PHOTO (Insert A): Chief Justice John Roberts listens to arguments from George Washington University law students during a moot court competition in Washington, Feb. 9, 2006. REUTERS/Jim Young
ILLUSTRATION: Matt Mahurin
PHOTO (Insert C): John Lewis (on right in trench coat) and Hosea Williams (on the left) lead marchers across the Edmund Pettus Bridge, where Lewis was brutally beaten by police, Mar. 7, 1965. REUTERS/Library of Congress/Courtesy Representative John Lewis
PHOTO (Insert D): President Lyndon B. Johnson talking to Martin Luther King Jr. in the White House. Courtesy of the LBJ Presidential Library.