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Senate tackles Voting Rights Act

The Cycle is providing special coverage of the debate over the Voting Rights Act -- this post will be updated with reports on the hearing throughout the day. 
A poll worker prepares 'I Voted' stickers at Harrison United Methodist Church during the U.S. presidential election in Pineville, North Carolina November 6, 2012. (Photo by Chris Keane/Reuters)
A poll worker prepares 'I Voted' stickers at Harrison United Methodist Church during the U.S. presidential election in Pineville, North Carolina November 6,...

The Cycle is providing special coverage of the debate over the Voting Rights Act -- this post will be updated with reports on the hearing throughout the day. 

Republican leader calls out John Roberts on Voting Rights

Updated 1:50 p.m. ET--The first testimony in today’s hearing came from members of Congress that Pat Leahy referred to as civil rights icons. John Lewis

John Lewis’s testimony opened by recounting his personal work marching and fighting for the original VRA.  Like Leahy, he praised Sensenbrenner’s record on the issue. Sensenbrenner demurred, saying he is “not a civil rights icon,” but more of a mechanic, as he wants to “repair a few parts” of the law after the Supreme Court decision.

Sensenbrenner emphasized that the VRA is “one of the most important pieces of civil rights legislation ever passed,” and it ensures that the U.S. will “never again permit racial prejudices in our electoral process.” He cited Reagan’s support for the extension in 1982, recounted how the law has ensured that every citizen “has an equal opportunity” to vote, and then closed with a detailed assessment of the challenge today:

“Shelby County vs. Holder severely weakened the election protections that both parties have fought to maintain.  The Court disregarded years of work by Congress.  In a 5-4 decision, the Court eliminated the VRA’s formula for determining which areas are covered by Section 5. The result is that the preclearance requirement remains, but it no longer applies anywhere except in the handful of locations currently subject to a court order.The majority’s decision suffers from one glaring oversight:  it fails to account for the bailout procedures in the VRA reauthorization.  Chief Justice Roberts correctly recognized that the VRA “employed extraordinary measures to address an extraordinary problem.”   But while the majority chastised Congress for failing to update section 4’s coverage formula, it ignored the fact that covered areas can bailout of the VRA’s coverage.  Far from punishing areas for distant history, any covered jurisdiction could bailout of coverage by demonstrating a 10-year period without discrimination.  The coverage formula, considered in conjunction with the Act’s bailout procedures, ensures that the Act is a fluid and current response to discrimination.  The very fact that these jurisdictions have not bailed out is evidence that the VRA’s “extraordinary measures” are still necessary.”

Sensenbrenner argued that the door is open for Congress now:

By striking down Section 4, the Court presented Congress with both a challenge and a historic opportunity.  We are again called to restore the critical protections of the act by crafting a new formula that will cover jurisdictions with recent evidence of discrimination. Any solution … must comply with the Supreme Court’s objections.  Fixing the VRA will take time, but I am confident that my colleagues on both sides of the aisle can work together to ensure Americans’ most sacred right is protected.”

From the testimony today, it looks like voting rights advocates still have a strong conservative ally in Sensenbrenner.

Leahy: Republicans have been crucial to Voting Rights Act 

Updated 1:25 p.m. ET -- Pat Leahy gaveled open historic hearings on amending the Voting Rights Act on Wednesday, stressing the unity and bipartisanship that has characterized the legislation in the past.

Leahy praised the first two witnesses slated to testify, John Lewis and James Sensenbrenner, who were strategically selected to begin the voting rights debate on a note of unity.  In fact, Leahy went to unusual lengths to credit Sensenbrenner, a former House Judiciary Chairman, for his previous VRA advocacy. Congress “could not have authorized it without Sensenbrenner’s leadership,” Leahy said.

The first Republican senator to speak, Chuck Grassley, echoed the Supreme Court’s concern that Congress has used antiquated data to patrol voting rights. He also hit the conservative argument that the remaining parts of the VRA, such as Section Two, may be sufficient (see coverage below).

At the same time, Grassley, who has voted for the VRA before, volunteered that “more progress must be made and should be made” to defend voting rights. He said he disagreed with Democrats who predicted that no bill could pass the House, and said that “we should cover the whole country” in eligibility for some kind of election supervision.

As Washington Republicans talk Voting Rights, Christie invokes vacation

Updated 1:15 p.m. ET -- Prominent Republicans are increasingly facing pressure to take a stand on Voting Rights Act reform, with hearings in the Senate and House this week. But Chris Christie is sticking to a vacation strategy.

The New Jersey governor was asked about the Supreme Court’s decision on Tuesday, and he offered a curious answer for major news that occurred three weeks ago:

“Gov. Chris Christie said today he still has no opinion on the U.S. Supreme Court's decision last month striking down the core of the Voting Rights Act of 1965. Asked at a news conference today whether he had read the decision by Chief Justice John Roberts, Christie said he had not yet had a chance. "I was on vacation," Christie told reporters in South River. The governor, who traveled to Sun Valley, Idaho, last week to attend a conference of leading philanthropists and tech executives sponsored by Allen & Co., said he was trying to find ways to attract more business to the Garden State.”

That report, from Salvador Rizzo at the Star-Ledger in New Jersey, adds that “Christie has been asked repeatedly to give his opinion on the court's decision.”  The charade is especially odd because you don’t need to digest the entire court opinion to know whether you think the federal government should patrol voter discrimination. Most national Republicans said yes in 2006, while at the local level, GOP officials have been more openly hostile to the VRA.

Should Congress surrender its power?

Another organization involved in fair elections issues, NYU’s Brennan Center for Justice, is submitting VRA testimony arguing that if Congress fails to act, it is abdicating an important power to protect free elections.

The group argues that after Shelby, local governments can now “re-enact or implement voting changes that have previously been formally blocked by Section 5.” They point to past infractions documented in a 23-page report from June, including:

  • The DOJ blocking “31 discriminatory election changes” since 2006 (when the VRA was reauthorized)
  • three instances in the 2012 campaign when “federal courts denied preclearance to proposed election changes”

They also argue that if Congress doesn’t amend the VRA, the U.S. will lose a “powerful deterrent” against local officials abusing voting regulations.  The numbers they offer on that score are striking – like 153 voting regulations that were dropped over a six-year period after the DOJ simply asked for “more information” about a proposed change under Section 5.

Disclosure: I did pro-bono work for the Brennan Center in 2009.

Time travel and voting rights

Updated 11:20 a.m. ET-- Today’s Senate hearing on the VRA starts at 1pm (webcast here), but some written testimony is starting to leak out.

Common Cause, a nonpartisan organization that focuses on free and fair elections, argues that the Supreme Court’s new ruling is damaging because it prevents meaningful protection of voting rights in real time:

“Before the VRA’s passage, and now in the post-Shelby limbo, the Department of Justice could challenge discriminatory voting laws only after they went into effect. While this power is undoubtedly constitutional and important, it proved constrictive … [But] the pre-clearance provision [in Section 5] provided an effective and efficient solution by enabling the Department of Justice to reject discriminatory practices before enactment, avoiding many of the costs and challenges of litigation

Beyond policy arguments, Common Cause also documents how some local governments are already responding to Shelby with new voting hurdles:

“Less than two days after the Shelby County decision, six states previously covered under the preclearance formula proceeded with plans to enact new voting restrictions that will make it harder for millions of Americans to vote - if they vote at all… This flood of discriminatory voting restrictions in the wake of Shelby underscores the need for Congress to act swiftly to reestablish the protections of the Voting Rights Act.”

Common Cause’s testimony was submitted by Karen Hobert Flynn. For a preview of testimony against VRA reform, see earlier post below.

(Here’s the entire witness list for today’s hearings: Representatives John Lewis and James Sensenbrenner; Luz Urbáez Weinberg, a Commissioner for Aventura, Florida; Law Professor Justin Levitt; and former DOJ official Michael Carvin -- interviewed below.)

Hillary Clinton: Voting rights reform crucial to millions of Americans

As Congress approaches its first hearing on the Voting Rights Act since Shelby, Hillary Clinton jumped into the debate. The law plays an “essential role in protecting our fundamental freedoms,” she told a historic black sorority on Tuesday. “Unless Congress acts,” she warned, local governments will “make it difficult for poor people, elderly people, working people, minority people to be able to do what we should take for granted.”

Clinton also drew on her legal expertise to counter the conservative jurisprudential argument that even if the VRA was once effective, it has outlived its utility.

Noting that “some take the historic success of the Voting Rights Act [to mean] we no longer need its protections,” Clinton likened that argument to discarding an umbrella in a storm because you haven’t been getting wet, a reference to Justice Ginsburg’s dissent in Shelby.

According to longstanding tradition, Clinton recused herself from commenting on domestic political issues while serving as Secretary of State. She has largely avoided politics since leaving the Obama administration, but made exceptions for a handful of major developments, such as the Supreme Court’s ruling on marriage equality and now, the battle over renewing the Voting Rights Act.

Senate Launches Voting Rights Debate

Updated 10:45 a.m. ET -- The Senate is renewing a debate over the Voting Rights Act (VRA) on Wednesday afternoon, with hearings to address the Supreme Court's recent decision knocking down part of the law.

The hearing will feature testimony from VRA backers in the House and some prominent VRA opponents. I spoke with one of them, Michael Carvin, a lawyer who served in the Civil Rights Division under President Reagan, about what he plans to tell the Judiciary Committee.

"My testimony focuses on the fact that Section 5 is no longer needed in the covered jurisdictions," Carvin says, referring to the extra supervision applied to certain regions under the original law.

He argues that Section 2, a less stringent approach to patrolling voter discrimination, is "more than adequate" to address remaining discrimination around the country.

"Section 2 has always been the heart of the Voting Rights Act," says Carvin, "and is largely responsible for eliminating voting problems in the South."

The Supreme Court decision did not alter Section 2, which generally enables suits against voter discrimination after the fact. Meanwhile, Section 5 had provided supervision in advance.

Carvin, who has enforced Section 5 cases for DOJ and filed legal challenges against it for clients in covered regions, also echoed complaints that pre-clearance is out of date.  Section 5 "used to be a useful supplement," but it's simply no longer needed.

Then there's the politics.

Carvin believes it's a mistake to parse the VRA, which has enjoyed bipartisan support, as a boost to a single party.

Republicans have used black majority districts to "gain power throughout the South," he says, pointing to the changing Congressional map since 1990.

By this thinking, access to the polls may largely benefit a Democratic constituency, but racial representation has constrained the impact of black voters in many regions.

There's extensive research and debate on that question–but it's largely beyond the scope of Wednesday's hearing.

Congress can update the pre-clearance formula as the Supreme Court urged, or it can duck the challenge.  Neither option addresses how Congressional districts are drawn. So if you buy Carvin's political read, some of his fellow Republicans may have less incentive to salvage a provision of VRA that doesn't benefit them electorally.

On the other hand, Republicans like James Sensenbrenner are testifying in favor of VRA reform, and most of the caucus -- including every Senator – is on record backing the law in 2006. So Republicans may have to contend not only with electoral politics, but the risk of looking hypocritical if they turn against a law they claimed to support.