Restoring the heartbeat of the Voting Rights Act

As we approach Martin Luther King, Jr. Day, the Voting Rights Act is coming back to life.

You may recall that last June, the Supreme Court put a dagger in the heart of the Voting Rights Act when, in  Shelby County v. Holder, it struck down the coverage formula that required some jurisdictions with a history of voter discrimination to seek federal approval for any voting changes (known as ‘preclearance’). Yesterday, Reps. James Sensenbrenner (R- Wis.) and John Conyers (D-Mich.) and Sen. Patrick Leahy, (D-Vt.) led a bipartisan effort to address this with the introduction of the Voting Rights Amendment Act of 2014. This bill – though in need of improvement – is worthy of support and represents a significant bipartisan accomplishment.  In such a polarized environment, that is no small feat.

When the Supreme Court overturned part of the Voting Rights Act, it took with it the ability to use many of the tools that stopped racially discriminatory voting practices from taking effect. This bill seeks to repair the damage done by the Court and restore the heartbeat of the Voting Rights Act (VRA), an important bipartisan move by Congress and the first step in the process to ensure the right to vote is protected.

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A primary goal of this legislation is to go beyond a static, geographically based formula that governed application of preclearance requirements under VRA prior to the court’s decision.  Instead, the legislation smartly includes a rolling preclearance mechanism that is flexible, forward-looking and focuses on recent discrimination.  At the outset, some jurisdictions with the worst records of discrimination will be subjected to a new preclearance formula, but the legislation also provides new tools to ensure an effective response to race discrimination whenever and wherever it occurs.   These include an expanded judicial bail-in provision for a voting violation found to have a discriminatory result as well as intent; new public notice and disclosure requirements for jurisdictions of proposed voting changes, particularly those that could have a meaningful impact on minority voters; enhanced preliminary relief when challenging certain types of voting changes that are likely to be discriminatory; and the additional ability of the Department of Justice to deploy federal observers in places where there is evidence of possible race and language minority discrimination that would interfere with the right to vote.

These are all great strides forward, but there is still significant room for improvement in the coming weeks and months.  For example, the bill contains provisions that treat violations arising from voter ID laws less seriously than other voting rights violations. This makes little sense in our view and carries a connotation that discriminatory voter ID laws are less problematic than other discriminatory voting changes. A discriminatory change is a discriminatory change, and we urge amending the bill so that it more consistently reflects this shared value.

The current bill is also lacking robust protections for minority voters, including those that are highly mobile, who are more frequently subject to a limited number of highly suspect voting changes that are most likely to be rooted in discrimination.

But all in all, we go into this long weekend when we collectively reflect on the life and legacy of Martin Luther King, Jr., more hopeful than we’ve been in a while that Congress will take strong, swift bipartisan action to protect Americans’ fundamental right to vote.

Just as Congress passed the original act in1965 and every reauthorization and extension of the Voting Rights Act by overwhelmingly bipartisan votes, we will work with the leaders of this bill to improve and pass it.  Congress must act immediately to move the bill forward because all the other rights we enjoy as citizens depends on our ability to vote – the heartbeat of democracy itself.

Vagins is a senior legislative counsel at the American Civil Liberties Union’s Washington Legislative Office, and Ray is a legislative assistant at the same office.