Updated 2:40pm
Here are a few takeaways from today's hearing on voting rights
The gentle opposition
Several Republicans spoke out against VRA reform today, but softly. Rep. Franks, who is known for his strident abortion views and opposition to the VRA, struck a respectful and bipartisan tone. He hailed John Lewis as a civil rights hero. He emphasized his openness to working with James Sensenbrenner, the most prominent Republican backer of the VRA. But Franks has not changed his mind.
After the hearing, he told me that his "heart and mind is open," but he doesn't think VRA reform is necessary. He pointed to parts of the law that the Supreme Court didn't strike down. And he said when he assesses racism in America, he looks to the Court's standards, voter turnout in the South, and the "mechanisms of discrimination" that were used in the 1960s. "I don't know all of the suppression that existed at the time," he volunteered, but still, Franks said he believes under current precedent, DOJ no longer needs to oversee local voting in advance.
A varied civil rights agenda
Several witnesses and Democratic members marshaled data showing the persistence of voter discrimination today, and the need for the VRA's supervision. But just as Senate Democrats muddled their focus at yesterday's hearing, some House Democrats hit on themes that are unlikely to recruit GOP support. (Rick Hasen, an election law expert, has more on that point.)
"Stand Your Ground" laws were raised by one congressman--a hot topic of high valence and low relevance. On the other hand, some Republicans tried to pivot the conversation to voter fraud, an issue that is not directly implicated in reforming Section 4 or 5 of the law.
The Boehner-Cantor vacuum
When you talk to members of Congress and Hill staff, it seems like VRA reform has yet to bubble up as a topic that House leadership feels compelled to address.
Franks told me after the hearing that he has not specifically discussed the issue with Speaker Boehner or Majority Leader Eric Cantor. Nadler, the top Democrat on the subcommittee, has not huddled with them either, though he is hopeful Cantor will build on his travels with John Lewis (see post below).
And Franks declined to say whether future VRA hearings will be scheduled--though Hill sources expect more hearings in both houses of Congress--or whether leadership should apply a majority-of-the-majority test to a VRA vote, a practice known as "The Hastert Rule" (a misnomer).
So at this point, it looks like some key House Republicans don't want to be known for killing the Voting Rights Act, but they'd be happy with it dead.
Republican Hearing Confronts Voting Rights Act
On Thursday, the House of Representatives holds its first hearing on the Voting Rights Act (VRA) since last month's Supreme Court ruling. The action begins in a judiciary subcommittee on the Constitution, where Arizona Rep. Trent Franks holds the gavel for Republicans, and New York Rep. Jerrold Nadler is the top Democrat. I caught up with Nadler to get his thoughts on the hearing and the prospects for VRA reform.
Nadler was quick to lament how the Shelby decision elevated state sovereignty over voter protection. "The notion of state sovereignty—I don’t know where this notion was—I thought it went out with the Civil War, to some extent," he says. "The 15th Amendment was specifically designed to say, 'Nevermind state sovereignty' when it comes to right to vote."
The subcommittee is chaired by one of the few Republicans who voted against the VRA in 2006, as we first reported, but Nadler believes that does not mean voting reform can't get through the House. "To be blunt, I don’t think Congressman Franks is going to decide Republican Party policy on this issue," Nadler argues.
"He will have an influence, as will a lot of people," Nadler says, pointing to GOP leadership and James Sensenbrenner, who testified for VRA reform in the Senate on Wednesday. So while it is "unfortunate that someone who voted against [the VRA] in 2006 is in charge of the subcommittee," Nadler says, "the basic decisions are going to be made at higher pay grades."
Nadler also stressed that he is committed to working in good faith with Republicans who want to amend civil rights protections in response to Shelby.
He has spoken with the Judiciary Committee leadership and with Sensenbrenner, who agreed on the importance of pre-clearance instead of relying on "just after-the-fact reactions under Section Two." Nadler also name-checked Eric Cantor, a GOP leader who has sometimes seemed receptive to the issue.
"He went on one of those Selma trips with John Lewis, as I've done twice," Nadler recalls, noting that Cantor "said he was very moved by it—I have no reason to doubt it—he says he wants to do something here."
We also discussed the jurisprudential backdrop for this week's hearings: A Supreme Court that has incrementally, but aggressively, chipped away at Congress's enumerated powers under the Reconstruction amendments.
Historically, Nadler stresses, Congress had pretty wide latitude to hold hearings, find facts and legislate policies to address those findings. The Court developed a new limit on that power, however, declaring that, as Nadler puts it, "Congress has to show that its action is proportional and congruent to the problem."
So while many people know famous civil rights cases like Brown or Shelby, Nadler points to a less famous 1997 case, Boerne v Flores, which limited 14th Amendment enforcement.
That is the "pernicious" precedent, he says, for courts "sharply constraining the ability of Congress to enforce Constitutional rights."
So now, if Congress wants to salvage voting rights enforcement, it must ensure that any remedy is congruent and proportionate to exhaustive factual findings about the problem.
"That is why we held hundreds of hours of hearings, why we had to sit there for hundreds of hours, and compile a 15,000-page record [in 2006]," Nadler says, with evident exasperation, "so we could say it was proportional and congruent!" (Justice Ginsburg's dissent makes the same point.)
For civil rights advocates, the Court's conservative doctrine has turned the Reconstruction Amendments upside down. The amendments specifically singled out confederate states for supervision. That is why Justice Roberts' fixation on treating all states equally–as a literal, legal requirement–is so maddening. On that point, Nadler went on a tear:
The Constitution specifically says 'any state.' In the aftermath of Civil War, 'any state' meant 'some states,' because you didn’t have 'previous condition of servitude' in Oregon or New England.[Ed. Note: The 15th Amendment bars state and federal governments from denying voting rights based on "previous condition of servitude."]What they meant was, 'We’re enacting this amendment because we know that some states will need to be forced, by federal power, to allow the right to vote. It doesn’t mean that all states need to be forced, what it means is where you know that you must use federal power to enforce the right to vote, do so![When critics ask] 'why are you doing so in Mississippi and not in Oregon' -- because Mississippi may need it and Oregon may not. That was the whole purpose of our fact-finding hearings! Ginsburg quotes from our findings [that] there were about 200 incidents in recent years under Section 5 where covered states tried to do things where courts or DOJ said it would interfere with voting.Lest someone say, as Roberts did disingenuously, that the old test may have been relevant, but no more. . . the rate of overturning [discriminatory rules] under Section 2 is twice as high in Section 5 covered jurisdictions.
Finally, I asked Nadler about the view of skeptics who say if this Congress can't pass most routine legislation, it definitely won't pass a complex package of voting reforms."They're correct that the House has not been a model of the way to do business, but given how central this is to democracy," he says, "maybe this will be an exception."
For more msnbc coverage of the Voting Rights debate, check out our coverage on the Senate debate, and check back here for more updates on the House hearing on Thursday.