John Lewis Voting Rights Bill must be amended to meet Supreme Court test

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Last week the Supreme Court gutted Section 2 of the Voting Rights Act 1965 (VRA). The Brnovitch vs. DNC ruling is just the latest example of the Court’s skepticism of the VRA.

In light of the court’s decision and a wave of voting restrictions passed across the country, the battle in Congress over the John Lewis Advancing Voting Rights Act (HR4) has taken on new meaning.

HR4 would, in essence, restore the Voting Rights Act prior authorization regime that the Supreme Court struck down in 2013 in Shelby County vs. Holder.

Prior to the court’s 2013 ruling, nine states and dozens of counties had to have any changes to their election laws pre-approved by the Justice Department or a U.S. federal court before enactment. But in Shelby County, the Supreme Court found that the formula that determined which states and jurisdictions were subject to preclearance (and which had largely not been updated since 1965) was unconstitutional.

The John Lewis Voting Rights Advancement Act, in part, is an attempt to address the Shelby County decision by establishing a new pre-clearance formula, which would address the Court’s previous concerns.

This “new” formula would subject any state or jurisdiction that has had at least 25 “voting rights violations” in the past 25 years to pre-screening. This would also apply to any state with 15 or more violations, if any of the violations were statewide.

But analysis by the Princeton Electoral Innovation Lab found the new formula would result in an almost identical list of states — disproportionately Southern and disproportionately Republican: Alabama, California, Florida, Georgia, Louisiana, Mississippi, New York, North Carolina. , South Carolina, South Dakota, Texas and Virginia. It is difficult to imagine that the Court would maintain this “new” formula as its effects would be similar to the previous one.

This problem was noted by at least one senator — Joe Manchin (DW.Va.) — who proposed that instead of adopting a new formula, the law should subject all states to preclearance. In principle, this does not seem like a bad idea. This could very well deter attacks on suffrage across the country and would not discriminate against any particular group of states or localities.

But as noble as Manchin’s proposal may be, it will not make it to court.

Part of the Court’s reasoning in Shelby County was that the very act of requiring prior authorization upset the normal balance of power between Congress and the states – a concept known as federalism. And while Congress has the power to intervene in state election laws to protect an important governmental interest — such as preventing racial discrimination — such interventions must treat states fairly and reflect current conditions.

While Manchin’s national preclearance would certainly treat every state fairly, it would not specifically reflect the contemporary reality of voting discrimination. Why should a state with no suffrage violations be subject to the same federal scrutiny as a state with a long history and current practice of discrimination? National preclearance would mark a massive foray by the federal government into what the court said should be the purview of the states; such an incursion would likely be negated since not all states have demonstrated a pattern of discrimination worthy of federal intervention.

But there is another way forward – a compromise between excessive national preclearance and the dated nature of the old formula. If the list of jurisdictions subject to prior authorization were changed to include any state that has suffered at least two statewide voting rights violations in the last 25 years, we are left with a large number of diverse states that reflect contemporary concerns about voting rights.

According to this updated formula, the states subject to preclearance would be: Alabama, Arizona, California, Colorado, Florida, Georgia, Hawaii, Illinois, Louisiana, Massachusetts, Mississippi, New York, North Carolina, Ohio, South Carolina, Dakota of the South, Texas and Virginia.

What is remarkable about these states is that they reflect both political and regional diversity.

This formula would both address the concerns of the Supreme Court and protect the right to vote. It treats all states the same; it aims to eliminate real and ongoing discrimination by state actors, and the ever-changing 25-year period means states have a real shot at getting out of preclearance.

The Voting Rights Act is the landmark legislation of the civil rights era. While not perfect, it has made significant progress toward extending the franchise to black Americans, as well as other minority groups. Preclearance was a central part of this effort to turn America into a democracy. The John Lewis Voting Rights Advancement Act is a real opportunity to restore the VRA. The nation needs a formula that will do real work, that can pass Congress, and that can survive Supreme Court scrutiny.

Adam Podowitz-Thomas (@RedistrictingA) is Senior Legal Strategist at Princeton Gerrymandering Project and Electoral Innovation Lab.

Zacharie Sippy (@ZachariahSippy) is an analyst at Princeton Gerrymandering Project and Electoral Innovation Lab.

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