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Republicans drag their feet on fixing the Voting Rights Act

The GOP lawmaker who could advance a bill to strengthen the Voting Rights Act wants more evidence that it's needed, say increasingly frustrated advocates.
A voter casts her ballot on Nov. 6, 2012 in Mansfield, Texas.
A voter casts her ballot on Nov. 6, 2012 in Mansfield, Texas.

The Republican lawmaker in a key position to help bolster the Voting Rights Act (VRA) isn’t convinced new legislation is needed, and wants more evidence that current laws aren’t strong enough to stop racial discrimination in voting, according to people involved in the discussions.

Virginia Rep. Bob Goodlatte’s go-slow approach—which comes as efforts to pass the bipartisan measure before this fall’s midterm elections enter a critical phase—is causing frustration among voting-rights advocates.

Goodlatte chairs the House Judiciary Committee. Before agreeing to hold a hearing on the bill, Goodlatte has asked for examples of voting discrimination that have occurred since the Supreme Court weakened the VRA last year in Shelby County v. Holder, as well as information on how such incidents would have been stopped by the proposed legislation.

Lobbyists with the NAACP responded to Goodlatte’s request last week with a 16,000-word document outlining a slew of discriminatory voting changes stopped by the VRA before the Shelby decision, as well as several new ones that went into effect after the landmark civil rights law was eroded.

The Shelby ruling invalidated the VRA’s most important provision, Section 5, which made certain states and localities with a history of voting discrimination got federal signoff—known as “pre-clearance”—before changing their voting laws. The ruling left in place Section 2, which lets victims of racial discrimination in voting file suit.  In January, a bipartisan group of lawmakers unveiled legislation, known as the Voting Rights Act Amendment (VRAA), that aims to reactivate Section 5, by updating the formula that determines which areas are subject to pre-clearance.

But many Republicans, Goodlatte apparently among them, believe Section 2 provides sufficient protections.  

“Their belief at the moment is that what’s left of the Voting Rights Act is still enough to make sure that every American voter has access to the polls,” said one person involved in the discussions, who, like many of those who spoke to msnbc, requested anonymity in order to discuss negotiations. “So that’s really where [Goodlatte] is, and we basically have to convince him before he’s willing to hold a hearing or do anything else.”

"I fully support protecting the voting rights of all Americans,” said Goodlatte in a statement provided to msnbc. “As Congress determines whether additional steps are needed to protect those rights, I will carefully consider legislative proposals addressing the issue."

But minutes after civil rights groups wrapped up a Washington press conference Thursday in which they repeatedly called on Goodlatte to hold a hearing, a House judiciary aide said via email that no hearing is currently scheduled.

“There seems to be a sense that people are doing OK—that Section 2 is providing protections that voters need,” said another person involved in the discussions, characterizing the views of Goodlatte and Republican aides. “And if you have Section 2 and it’s providing the protections that are needed, why do you need more?”

Rep. Eric Cantor, the House majority leader who played a key early role in discussions over the VRAA bill before it was unveiled, also remains non-committal.

Cantor "wants to make sure we preserve every American's right to vote,” his spokeswoman Megan Whittemore said via email. “Both sides still have concerns with various aspects of this proposal, so we continue to have conversations about how it can be improved."

In part, Goodlatte and Cantor are channeling the views of the GOP caucus. Republicans are aware that measures like voter ID and cuts to early voting—which might be more easily blocked under a revamped VRA—tend to help their party by making it harder for Democratic-leaning groups to vote.

Voting rights advocates say we're approaching a critical moment.

“The next several weeks are very crucial,” said Nicole Austin-Hillery of the Brennan Center for Justice. “The hope was always to have this passed and signed before the midterms." 

And some say the kind of information they’ve compiled for Goodlatte should be used in the context of a hearing, not in order to get one.

“He wants more evidence of discrimination, and our response to that is: That’s what would be useful to discuss at a hearing,” said Deborah Vagins, a senior legislative counsel with the ACLU, who stressed that her group is always glad to provide information for lawmakers.

Another advocate involved in the discussions was even blunter, suggesting evidence of discrimination that Goodlatte says he wants is already available. 

"The evidence is out there," said the advocate. "Let's have a hearing so that we can move forward with a solution that matches the problem."

“We worked very hard to clear our minds after Shelby, and say, we’re not going to live in the past, we’re going to live in the future. What does the future look like?” the advocate continued. “And then we can’t even get a hearing from Bob Goodlatte. Not even a hearing.”

"The next several weeks are very crucial. The hope was always to have this passed and signed before the midterms."'

If Goodlatte believes that what’s left of the Voting Rights Act, along with the protections in the Constitution, is sufficient, he may have been helped to that view by a group of conservative legal scholars who oppose efforts to strengthen the law. In a series of articles and congressional testimony since the Shelby ruling, these conservatives have argued that Section 2 is pretty much strong enough to do the job of stopping racial bias in voting. (They’ve also argued separately that Section 2 should be read as narrowly as possible, but that’s mostly another story.)

Roger Clegg, a conservative legal activist who is one member of that group, said he's conveyed that message directly to congressional staff. And he said he believes key Republicans like Goodlatte and Cantor will ultimately agree.

"I think they understand that there are real problems with the bill, and with the whole notion that there needs to be additional laws passed in this area," said Clegg. "They recognize that the world is very different now than it was in 1965, that it's not necessary to have Eric Holder running the voting systems."

Clegg and his allies got a talking point when a federal court last month struck down Wisconsin’s voter ID law under Section 2, finding that it discriminated against non-white voters, who are more likely than whites to lack ID.

Voting-rights advocates, while cheering the Wisconsin ruling, strongly disagree that Section 2 is enough. As the NAACP document presented to Goodlatte shows, most of the cases of racial bias in voting that were stopped by Section 5 weren't statewide laws like voter ID, which attract national attention. Instead, they were local level moves that, were it not for Section 5's pre-clearance requirement, would have flown under the radar, since there isn't even a way to track all of them. And the expense makes it difficult for private plaintiffs like local community groups to bring Section 2 cases, which are time-consuming and costly, unless they can enlist help from national organizations or the Justice Department.

“It takes an awful lot of resources to prove a Section 2 case,” said John Tanner, a former head of the Justice Department’s voting rights section.

As for the bigger statewide cases making national headlines, many of those—like the Section 2 lawsuits against Texas’s voter ID law and North Carolina’s cuts to early voting and elimination of same-day registration—are still pending. That means the jury is still out on whether the VRA in its current form will be strong enough to stop them.

But beyond the legal finer points, those pushing to strengthen the law say if they don’t see progress soon, they might stop playing nice.   

“We always start out with, let’s give folks the benefit of the doubt, let’s give them a chance to do the right thing here,” said one person involved. “That’s where we are right now. We’re still giving them a chance to come to the right place and hold hearings and do the right thing. But that won't last forever."