By Mike Lillis - 06/29/13 10:00 AM EDT
House Democratic leaders met Friday to brainstorm ways to restore the Voting Rights Act following the Supreme Court decision that voided the law's central provisions.
Assembled in the office of House Minority Leader Nancy Pelosi (D-Calif.), the lawmakers reached no conclusions about a specific fix, according to sources familiar with the talks, though they outlined a legislative strategy that features outreach to Republicans sympathetic to their cause.
Among those Republicans are Reps. Eric Cantor (Va.), the House majority leader, and James Sensenbrenner (Wis.), the former chairman of the Judiciary Committee, both of whom vowed this week to work to ensure that the court's decision does not diminish minority voting rights.
Legislatively, the lawmakers will essentially be starting from scratch. Although Democrats in recent years have pushed a series of bills to counter the efforts of some states to apply stricter voting standards, they "could not write a bill to respond to the Shelby County case decision until the decision was made," said a Democratic leadership aide, referring by title to the high court’s Voting Rights Act decision.
For that reason, "the legislative path forward in response to the Shelby County ruling specifically has yet to be determined," the aide said.
Pelosi has appointed Rep. James Clyburn (D-S.C.), a veteran of the civil rights struggle and the third-ranking Democrat in the House, to lead the Democrats' effort. Clyburn this week said the court's decision would likely empower conservative states — including his own — to launch redistricting efforts designed to marginalize minority voters, who tend to vote Democratic.
"I can envision, at the beginning of the next legislative session, a lot of states, including my home state, will be taking a look, and probably will be having some redistricting," Clyburn said.
Also attending Friday's meeting were Democratic Reps. Xavier Becerra (Calif.), the chairman of the House Democratic Caucus; John Lewis (Ga.), the civil rights icon; John Conyers (Mich.), senior Democrat on the Judiciary Committee; Jerrold Nadler (N.Y.), ranking member of the Judiciary Committee's subpanel on civil justice; and John Dingell (Mich.), the House dean who says his vote for the Voting Rights Act was his proudest in Congress.
Enacted in 1965, the Voting Rights Act requires a number of states with a history of racial discrimination to secure federal approval before altering their voting procedures. The law was last reauthorized in 2006 with overwhelming bipartisan support, but the formula dictating which states are subject to extra scrutiny is decades old.
Behind Chief Justice John Roberts, the Supreme Court's conservative majority ruled 5-4 Tuesday that the formula — contained in Section 4 of the law — is outdated and therefore unconstitutional.
"Coverage today is based on decades-old data and eradicated practices," Roberts wrote. "Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions."
The Court did not invalidate Section 5, which empowers the federal government to require pre-clearance in certain states. But without a formula to determine which regions are subject to the extra scrutiny, Section 5 is effectively dormant.
Roberts invited Congress to "draft another formula based on current conditions," which is exactly what Pelosi and the Democrats intend to do.
They face a rough road ahead, however, as enacting a new formula will require bipartisan agreement about which states are most prone to discrimination against minorities — a politically charged question that carries the potential to sink the whole effort.
Indeed, some conservatives on Capitol Hill are already questioning whether Congress should make any effort to rewrite the formula, suggesting the era of unpunished discrimination is over and voters don't need the extra layer of protections.
"I'm just not aware of any discrimination of that kind, and if it happens I have no doubt that the Alabama attorney general would prosecute it or the U.S. Department of Justice will," Sen. Jeff Sessions (R-Ala.) said this week.
Some liberals, on the other hand, are already calling for the formula to be rewritten so that it includes even more states than it did in 1965.
Rep. Marcia Fudge (D), for one, is already lobbying for her home state of Ohio to be added to the list.
"They say that things need to be changed? Yes they need to be changed," Fudge said this week. "Not only should they not have shot down Section 4, they should have expanded it."
President Obama and Senate Judiciary Chairman Patrick Leahy (D-Vt.) have vowed action to restore the protections invalidated by the court, but movement has been slower across the aisle. Both Speaker John Boehner (R-Ohio) and Judiciary Chairman Bob Goodlatte (R-Va.) declined to weigh in this week about whether Congress should attempt to rework the formula.
“We are reviewing this decision and trying to determine what the proper steps forward are going to be,” Boehner told reporters in the Capitol.
Rep. G.K. Butterfield (D-N.C.), a member of the Congressional Black Caucus (CBC) and a former voting rights attorney, said that, given the partisan divide in Congress, the risk of a stalemate over the formula is very real. With that in mind, Butterfield said the Department of Justice should step in to ask the Supreme Court to provide an interim formula that would guarantee voter protections while Congress tries to iron out a legislative response.
"We can give the Congress some time, but if there's inaction on the part of the Congress, I think that somebody needs to petition the court — and it should be the Department of Justice — petition the Court and say that, 'Look, Congress has failed to come up with a new formula, discrimination continues to exist, would you please order, or have a lower court order, an interim formula," Butterfield said this week.
Butterfield said he floated that idea to a DOJ official who met with the entire Democratic Caucus this week to discuss the court’s decision.
"He did not give me any encouragement that they would pursue an interim formula," Butterfield said. "But I'm not going to give up on it. I really think it's doable."
Meanwhile, while the Democrats aren't sure what their legislation will contain, they do know what name it will bear.
"I would like to see something … called the John Lewis Voting Rights Act," Pelosi said.