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.
But some House Democrats are determined to try—and in fact, to make the Voting Right Act even tougher than it was before.
At a press briefing on Capitol Hill Tuesday afternoon, Representative James Clyburn—the third-ranking Democrat in the House—said that the Court’s decision was an opportunity to expand Section 4 beyond the mainly Southern application that existed until Tuesday.
Clyburn noted that thirty-eight states enacted some form of voter identification before the last election. He also referenced Ohio and Pennsylvania in particular, where some Republican officials blatantly admitted the voter identification laws were meant to suppress the black vote or achieve partisan goals. (In Ohio, a close adviser to Governor John Kasich said, “We shouldn’t contort the voting process to accommodate the urban—read African-American—voter-turnout machine.” In Pennsylvania, the Republican leader of the state House said voter identification laws are “gonna allow Governor Romney to win the state of Pennsylvania.”)
“If you look at…the actions that thirty-eight states took in the run-up to the 2012 elections, there are records that have been developed,” Clyburn said. “Most of us are very familiar with the record that developed in Pennsylvania. And I’m pretty familiar with the activities taken by the secretary of state in Ohio. Let’s look at their language, and the record we will develop this time—we’ll bring their words into this record. We didn’t have their words in 2006 [during the last reauthorization]. We’ve got them now.”
Clyburn continued: “The intent to turn the clock back is very, very clear. I think that there are counties in Pennsylvania and in Ohio that would probably come under in the new formula that we develop.”
There are caveats to this approach: for one, the majority opinion in Shelby suggested that new formulas still might not pass constitutional muster unless they prove Jim Crow–era levels of discrimination, which the justices don’t think applies to voter identification bills. “No one can fairly say that” current data “shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965,” it read.
But most Democrats in Congress disagree—and remember this was a 5-4 vote, and the Supreme Court could look different by the time any new Congressional Section 4 formulas reach it.
The larger problem of course is Schumer’s point: Republicans in Congress won’t allow Clyburn’s approach to become law. But on a day where President Obama opened the door to denying the Keystone XL pipeline, it is important to remember that public pressure shouldn’t be underrated—especially, in this case, when targeted at a Republican Party that is already admittedly worried about its appearance as racially intolerant.
[UPDATE: Late Tuesday, House Majority Leader Eric Cantor released a rather stunning statement to Talking Points Memo endorsing Congressional action: “My experience with John Lewis in Selma earlier this year was a profound experience that demonstrated the fortitude it took to advance civil rights and ensure equal protection for all,” Cantor said. “I’m hopeful Congress will put politics aside, as we did on that trip, and find a responsible path forward that ensures that the sacred obligation of voting in this country remains protected.”]
This was the tone struck by several members of the Congressional Black Caucus on Tuesday, some of whom marched for civil rights fifty years ago and aren’t afraid of doing it again.
“The American people should use the fiftieth anniversary of the March on Washington, and other opportunities, to say we still need protection in our country,” said Representative John Lewis at a briefing Tuesday. “They must compel each and every member of Congress to act in a bipartisan fashion to fix, or repair, what the Supreme Court broke. We must do it. We must do it now, before another national election takes place. It is our calling. It is our mission. It is our mandate, and we have an obligation to act.”
Representative Marcia Fudge, chair of the CBC—and who also said she wants Section 4 formulas expanded—agreed. “If they want us to march again, then we are up to the task,” she said.
Ari Berman explains what was lost when the Supreme Court gutted the Voting Rights Act.