CBC seeks improvements to voting law

Members of the Congressional Black Caucus (CBC) are seeking to strengthen the Voting Rights Act by making it easier for judges to expand voter protections across the country in response to individual discrimination lawsuits.

The effort goes beyond crafting a broad definition of which voters should get extra protection based on regional records of racial discrimination.

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The move is an indication that some Democrats are hoping to use last month’s Supreme Court decision scrapping the law’s Section 4 coverage formula as an opportunity to bolster other provisions of the landmark civil rights legislation that were left intact by the ruling.

Specifically, the lawmakers are taking a close look at revising Section 3, which empowers the court to apply Section 5’s federal “preclearance” requirements to jurisdictions found to discriminate intentionally against minority voters.

Rep. G.K. ButterfieldGeorge (G.K.) Kenneth ButterfieldPelosi, Dems accuse GOP of moving goal posts on DACA deal Lawmakers push Microsoft to ban private arbitration in all discrimination cases Conyers resigns amid sexual misconduct allegations MORE (D-N.C.), who’s leading the charge, wants to lower the bar so that judges can apply the extra layer of scrutiny in cases where election rules are found to have a discriminating effect.

Butterfield says the burden of proving “intentional” prejudice makes it too difficult to extend the federal protections, even in lawsuits where discrimination against minority voters is discovered.

“I want to lower the standard of proof from intentional discrimination, which is hard to prove, to discriminatory result,” Butterfield, a former voting rights attorney, said last week.

“So if the court were to find that [a jurisdiction] had an election system that had a discriminatory result to minority citizens, then that would be sufficient to trigger Section 3, which would then trigger Section 5.”

Along with Rep. Bobby ScottRobert (Bobby) Cortez ScottImpeachment looms over Dem choice on Judiciary Overnight Regulation: FCC, FTC unveil plan to police internet after net neutrality repeal | Justices turn down case on LGBT worker rights | Dems seek delay of new tipping rule | Industry sues over California drug pricing law Overnight Finance: Scorekeeper says House tax bill won't pay for itself | Fight over Treasury's analysis of tax plan | GOP worries about tax bill's unpopularity | What's ahead in year end spending fight MORE (D-Va.), Butterfield is leading a CBC task force charged with outlining legislative recommendations for amending the Voting Rights Act in the wake of the Supreme Court’s decision. 

The group met Monday to finalize those recommendations, with the members poised to present their ideas to the full group on Wednesday.

Afterward, the lawmakers will deliver the recommendations to party leaders, including Rep. James Clyburn (S.C.), the third-ranking House Democrat.

Clyburn was appointed by Minority Leader Nancy Pelosi (D-Calif.) to spearhead the legislative response to the Supreme Court ruling.

The two separate working groups are “not in competition or conflict,” Butterfield emphasized, “but we’re doing some thinking and researching and trying to make some recommendations to Pelosi’s group.” 

Butterfield added he is “in daily communication” with Clyburn.

The lawmakers also want to rewrite the Section 4 formula dictating which states are subject to extra voting protections based on documented histories of discrimination.

The Supreme Court shot down Section 4, claiming it was outdated, but invited Congress to revise the formula based on current events. 

The court kept intact the federal preclearance powers outlined in Section 5, the authority of judges to expand those protections under Section 3 and the right for individuals to file election-related discrimination suits defined by Section 2.

Scott said he’s optimistic the lawmakers can tweak the formula and get it through Congress this year.

“If you look at the Section 2 violations, most of them are occurring in covered jurisdictions. So the formula has been fairly accurate,” he said last week. “So we just need to update the list.”

It’s unclear, however, if top Republicans are on board.

While House Majority Leader Eric CantorEric Ivan CantorEric Cantor: Moore ‘deserves to lose’ If we want to make immigration great again, let's make it bipartisan Top Lobbyists 2017: Hired Guns MORE (R-Va.) has urged lawmakers to find “a responsible path forward” in response to the Supreme Court decision, other GOP leaders have been much more reticent about Congress’s role.

Speaker John BoehnerJohn Andrew BoehnerDems face hard choice for State of the Union response Even some conservatives seem open to return to earmarks Overnight Finance: Trump, lawmakers take key step to immigration deal | Trump urges Congress to bring back earmarks | Tax law poised to create windfall for states | Trump to attend Davos | Dimon walks back bitcoin criticism MORE (R-Ohio) said last month that he was reviewing the decision, but has yet to weigh in further. His office on Monday deflected questions to the House Judiciary Committee. 

Rep. Bob GoodlatteRobert (Bob) William GoodlatteFreedom Caucus chair: GOP leaders don't have votes to avoid shutdown Sessions: 'We should be like Canada' in how we take in immigrants GOP leaders pitch children's health funding in plan to avert shutdown MORE (R-Va.), who heads the Judiciary panel, suggested at a hearing on the law last week that the court was correct to scrap Section 4 as outdated. He was quick to note that voters are still protected by Sections 2 and 3.

A committee official said Monday that Goodlatte “has not made an indication at this time” about the need for Congress to act following the court’s decision. 

Butterfield, for his part, is already wary of Republicans’ reluctance to voice a position. He warned that supporters of restoring the Voting Rights Act face an uphill battle in the face of a sharply divided GOP conference.

“The looming question, the elephant in the room, is whether BoehnerJohn Andrew BoehnerDems face hard choice for State of the Union response Even some conservatives seem open to return to earmarks Overnight Finance: Trump, lawmakers take key step to immigration deal | Trump urges Congress to bring back earmarks | Tax law poised to create windfall for states | Trump to attend Davos | Dimon walks back bitcoin criticism MORE and Cantor will bring this to the floor without a majority of the Republican conference,” he said, referring to a threshold often called the Hastert Rule.

“If the Boehner Rule is invoked, then I don’t feel optimistic that it will ever get to the floor.”

This post was updated to correct the description of Section 3 of the Voting Rights Act.