A Flawed Attempt at Protecting Minority Voters’ Rights: Voting Rights Act Amendment of 2014 (H.R. 3899, S.1945)
About the Author
Supreme Court Ruling in Shelby County v. Holder
The Supreme Court struck down the coverage formula for Section 5 of the Voting Rights Act, which required certain jurisdictions to get preclearance from the Department of Justice (DOJ) or a federal court in Washington, D.C., before making changes in their voting laws.
The Court found the coverage formula unconstitutional because it was based on 40-year-old turnout data that did not reflect contemporary conditions. Census Bureau data show that black voter turnout is on par with or exceeds that of white voters in many of the formerly covered states and is higher than the rest of the country.
This decision did not affect other provisions of the Voting Rights Act that protect voters, and the Justice Department and civil rights groups have been using them aggressively. There is no need for legislation and no evidence that these provisions are not adequate to protect voter rights.
The proposed legislation is almost certainly unconstitutional because it does not satisfy what the Supreme Court said was required for coverage: The 1965 standards were obsolete, and any requirement that states obtain federal approval of election changes could be imposed only if Congress found “blatantly discriminatory evasions of federal decrees,” lack of minority office holding, tests and devices, “voting discrimination ‘on a pervasive scale,’” or “flagrant” or “rampant” voting discrimination. Those conditions are nowhere to be found in 2014.
What the Law Already Provides
Section 2 is a permanent, nationwide ban on racial discrimination in voting. It bans intentional discrimination as well as discriminatory “results” based on a court’s review of the “totality of the circumstances” under which it occurred.
Section 3 allows a court to impose a preclearance requirement in a particular jurisdiction where a court determines that there is intentional misconduct.
What the Proposed Bill Would Do
The bill’s stated purpose is to prevent racial discrimination, but it would force racial gerrymandering, make race the predominant factor in the election process, and advance the partisan interests of one political party.
It would change Section 3 from requiring a showing of intentional discrimination to allowing other violations of the VRA—most of which require only a showing of “disparate impact”—to count toward triggering preclearance coverage.
States would be placed under Section 5 preclearance for 10 years if DOJ determines that five “voting rights violations” occurred during a 15-year period—even if the state is responsible for only one of them.
Voting rights violations include objections made by the Attorney General—which don’t require any finding of intentional discrimination; a discriminatory effect based on statistical disparity is sufficient. Such “disparate impact” liability has been misused in many different areas besides voting.
This is especially troubling given the many past court decisions castigating DOJ for filing unwarranted objections under Section 5. In 2012, a federal court overturned DOJ’s objection to South Carolina’s voter ID law—but it cost the state $3.5 million to win. Most jurisdictions don’t have the resources to fight DOJ.
Because tallying up rulings against a jurisdiction will trigger coverage, DOJ and outside groups will have an incentive to file as many objections as possible and manufacture litigation. The triggers are so low (depending on the size of the jurisdiction, ranging from five to three to one so-called voting rights violations) that just about any jurisdiction could be targeted.
turnout would be considered a voting rights violation even if a jurisdiction engages in no discriminatory conduct. While low turnout might have been a plausible indicator of racial disenfranchisement in 1964, it is not plausible today.
But low turnout by white voters
count as a violation, even if they are a minority of voters in the district. If adopted, this would mark the first time that the Voting Rights Act actually excluded some Americans from protection based on their race.
Being placed into federal receivership will encourage racial and political gerrymandering. The 2006 changes in Section 5 imposed a “quota floor” for minority political success, prohibiting changes that “diminish the ability” of racial minorities to elect their “candidate of choice.”
The bill imposes burdensome and impractical information disclosure requirements on local officials, such as providing demographic analysis of every precinct.
The bill creates a novel legal standard for injunctive relief that is unknown in modern jurisprudence, inserting factors such as a “hardship” determination that favors plaintiffs’ lawyers and virtually guarantees an injunction.
Sponsors of the bill claim it would not allow the Justice Department to object to state voter ID requirements; that is incorrect: The Attorney General could still object to new voter ID laws or sue under other provisions of the VRA. Such an objection just could not be used as one of the “triggering” events to reimpose preclearance.
Finally, the bill would
expand the Attorney General’s power to challenge “any act prohibited by the 14th or 15th Amendment” of the U.S. Constitution. Under current law, the Attorney General is authorized to bring civil rights claims under specific federal statutes, while only private plaintiffs can sue alleging violations of the 14th or 15th Amendment. This would allow the AG to become involved in a whole range of cases unrelated to race discrimination, such as highly partisan, politically charged election disputes like the
Bush v. Gore
decision of 2000.