Chief Justice John Roberts. (AP Photo/Keith Srakocic)
The bad news about Tuesday’s Supreme Court ruling in Shelby County v. Holder is, of course, that the majority declared Section 4 of the Voting Rights Act unconstitutional. That’s the part of the law that determines which localities are covered under Section 5, which requires areas with problematic voter discrimination to pre-clear any changes to voting laws with the Justice Department.
The good news, however, is that the Court did not find Section 5 itself unconstitutional, much to the chagrin of some conservatives. Chief Justice John Roberts wrote, “Congress should update the coverage formula to require that states and localities with recent voting rights violations preclear new election law changes.”
The Beltway wisdom is that this will never happen—the Congress is hopelessly dysfunctional, and specifically, obstructionist Republicans are happy with the Supreme Court’s decision and completely unwilling to allow new formulas for Section 4. “As long as Republicans have a majority in the House and Democrats don’t have sixty votes in the Senate, there will be no preclearance,” Senator Charles Schumer declared bluntly Tuesday.
But everything is impossible until it isn’t. Suppose for a second Congress is able to act on Roberts’s request to update the coverage formulas—how would it do so?
One step would be to have the Senate Judiciary Committee pass out such legislation. The chairman of that committee, Senator Patrick Leahy, has already promised to do that: “I intend to take immediate action to ensure that we will have a strong and reconstituted Voting Rights Act that protects against racial discrimination in voting,” he said in a statement Tuesday.
The next would be to have that bill debated by the full Senate. And Majority Leader Harry Reid is already on board, too: “I have asked Chairman Leahy to immediately examine the appropriate path for the Senate to address this decision,” he said Thursday. “I am confident in Congress’s ability to judge what is necessary to prevent racial discrimination in election practices.”
So far, so good. The House, of course, is a tougher road: the majority is held by Republicans, and the Republican chair of the House Judiciary Committee, Representative Bob Goodlatte, does not appear to be particularly interested in this issue—unlike his Republican predecessor, who happened to be a strong defender of the Voting Rights Act.