By Mike Lillis - 08/16/13 10:00 AM EDT
Members of the Congressional Black Caucus (CBC) have finalized their voting rights wish list in hopes of rebuilding protections that were struck down by the Supreme Court this year.
The court ruled that a decades-old formula dictating which states must be subject to federal oversight under the Voting Rights Act (VRA) was outdated and, therefore, unconstitutional.
A CBC task force led by Reps. G.K. Butterfield (D-N.C.) and Bobby Scott (D-Va.) wants to update that formula based on more current data, but they don’t stop there.
The lawmakers also want to make it easier for judges to extend the federal protections to outlying jurisdictions and to allow states to opt into the system of federal oversight — a package that takes their advocacy well beyond a mere reworking of the defunct formula.
The CBC members handed their plan to Rep. James Clyburn (D-S.C.) on the Friday that Congress left town for a long August recess. Clyburn was tapped by House Minority Leader Nancy Pelosi (D-Calif.) to lead the Democrats’ response to the Supreme Court ruling.
The CBC group has not written legislative language — "We can't have too many cooks in the kitchen," Butterfield quipped this week — but have instead offered recommendations they hope will guide the process.
The lawmakers are eyeing at least four separate changes to the Voting Rights Act:
• Section 2: This section empowers individuals or the Justice Department to file lawsuits against voting jurisdictions on allegations of discriminatory election rules. The CBC task force wants to tweak the language to make it easier for judges to grant temporary injunctions preventing such rules from taking effect while a suit is ongoing.
Under current law, plaintiffs can win such an injunction only if they demonstrate that they both have been harmed by the rules and will likely win the case. The CBC members want to scale back the second precondition — "a pretty high hurdle," said Butterfield — so plaintiffs must show only that their suit raises serious questions about the discriminatory effect of the rules being challenged.
• Section 3: This is the "bail-in" section of the Voting Rights Acts, which empowers judges to apply the Section 5 protections to jurisdictions found to have discriminated intentionally against plaintiffs of a Section 2 lawsuit. The CBC working group wants to eliminate the burden of finding intent, instead allowing judges to apply the extra oversight in cases where election rules are found simply to have a discriminating effect.
• Section 5: This section authorizes the federal government to monitor elections in jurisdictions with proven records of racial discrimination at the polls. The CBC wants to allow states to opt into these protections voluntarily, even if the Section 4 coverage formula does not mandate their inclusion.
• Section 4: This section contains the coverage formula the Supreme Court deemed obsolete. The CBC group wants to update the formula to include those jurisdictions that have been found to violate Section 2 or Section 5 since 2000 or have entered into a settlement or consent agreement based on a discrimination complaint over the same 13-year span.
Butterfield, a former judge, said he has "no idea" which states would be covered under such a formula, "but it would be far less than [the nine] we have today."
"This won't even be close," he said, "but it's a start."
They have a rough road ahead.
Rewriting a coverage formula for the VRA would be a heavy lift for any Congress. But it would be particularly onerous in the current political environment, where the sharply fractured Congress has struggled to enact even routine legislation, like bills to fund the federal government, raise the debt ceiling and outline a farm policy.
Democrats are hoping they will get a big boost from Rep. Eric Cantor (R-Va.), the House majority leader, who says he wants Congress to act in the wake of the Supreme Court ruling. Cantor is already meeting with Democrats and Republicans in hopes of getting it done.
Cantor has said he was moved by a visit this year to Selma, Ala., the site of a landmark 1965 civil rights march that catalyzed the passage of the VRA just months later. And he and Rep. John Lewis (D-Ga.), a civil rights hero who was beaten during that march, have struck up a friendship since that trip.
Butterfield said he spoke briefly with Cantor on the topic after Congress's July 31 celebration marking the 50th anniversary of Martin Luther King Jr.'s "I Have a Dream" speech.
"He assured me," Butterfield said, "that he is serious."