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.
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 ButterfieldDemocrats eager to fill power vacuum after Pelosi exit Democrats confront rising retirements as difficult year ends Members of Congress not running for reelection in 2022 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 ScottProposed Virginia maps put rising-star House Democrats at risk Industry, labor groups at odds over financial penalties in spending package Historically Black colleges and universities could see historic funding under Biden plan 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 CantorRepublicans eager to take on Spanberger in Virginia Virginia emerging as ground zero in battle for House majority McAuliffe's loss exposes deepening Democratic rift 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 BoehnerDemocrats eager to fill power vacuum after Pelosi exit Stopping the next insurrection Biden, lawmakers mourn Harry Reid 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 GoodlatteFight breaks out between Jordan, Nadler over rules about showing video at Garland hearing The job of shielding journalists is not finished Bottom line 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 BoehnerDemocrats eager to fill power vacuum after Pelosi exit Stopping the next insurrection Biden, lawmakers mourn Harry Reid 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.