Last week, the Supreme Court effectively eviscerated Section 2 of the Voting Rights Act of 1965 (VRA). The Brnovich v. DNC ruling is only the latest example of the Court’s skepticism of the VRA.
In light of the Court’s decision and a wave of voting restrictions adopted across the nation, the battle in Congress over the John Lewis Voting Rights Advancement Act (HR4) has taken on a new significance.
HR4 would, in essence, restore the pre-clearance regime of the Voting Rights Act that the Supreme Court struck down in 2013 in Shelby County v. Holder.
Prior to the Court’s 2013 ruling, nine states and dozens of counties were required to have any changes to their voting laws pre-cleared by the Department of Justice or a U.S. federal court prior to enactment. But in Shelby County, the Supreme Court found the formula that determined which states and jurisdictions were subject to pre-clearance (and which largely hadn’t been updated since 1965) to be unconstitutional.
The John Lewis Voting Rights Advancement Act, in part, is an attempt to respond to the Shelby County decision by establishing a new pre-clearance formula, one that would address the Court’s previous concerns.
This “new” formula would subject any state or jurisdiction that has had 25 or more “voting rights violations” in the past 25 years to pre-clearance. It would also apply to any state that had 15 or more violations, if one of the violations was statewide.
But an analysis by the Princeton Electoral Innovation Lab has found that the new formula would result in a near-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’s hard to imagine the Court upholding this “new” formula, given how similar its effects would be to the previous one.
This problem has been noticed by at least one Senator — Joe Manchin (D-W.Va.) — who has proposed that instead of adopting a new formula, the law ought to subject all states to pre-clearance. In principle, this doesn’t sound like a bad idea. It could very well deter attacks on voting rights across the country and wouldn’t discriminate against any particular group of states or localities.
But as noble as Manchin’s proposal may be, it won’t pass muster at the Court.
Part of the Court’s rationale in Shelby County was that the very act of requiring pre-clearance upended the normal balance of power between Congress and the states — a concept known as federalism. And while Congress does have the power to intervene in state voting laws to protect an important governmental interest — such as preventing racial discrimination — these interventions must treat states fairly and reflect current conditions.
While Manchin’s national pre-clearance would certainly treat each state fairly, it would not specifically reflect the contemporary reality of voting rights discrimination. Why should a state with no voting rights violations be subject to the same federal scrutiny as a state with a long history and current practice of discrimination? National pre-clearance would mark a wholesale incursion of the federal government into what the Court believes ought to be the purview of the states; such an incursion would likely be overturned since not every state has demonstrated a pattern of discrimination meriting federal intervention.
But there is another way forward — a compromise between the excess of national pre-clearance and the dated nature of the old formula. If the list of jurisdictions subject to pre-clearance was amended to include any state that has had two or more statewide voting rights violations in the last 25 years, one ends up with a large, diverse pool of states that reflects contemporary voting rights concerns.
Under this updated formula, the states subject to pre-clearance would be: Alabama, Arizona, California, Colorado, Florida, Georgia, Hawaii, Illinois, Louisiana, Massachusetts, Mississippi, New York, North Carolina, Ohio, South Carolina, South Dakota, Texas and Virginia.
What’s notable about these states is that they reflect both political and regional diversity.
This formula would meet both the Supreme Court’s concerns and protect voting rights. It treats all states equally; it’s aimed at eliminating real, current discrimination by state actors, and the constantly evolving 25-year period means that states have a real chance of exiting pre-clearance.
The Voting Rights Act is the hallmark legislation of the civil rights era. While not perfect, it made significant gains toward expanding the right to vote to Black Americans, as well as other minority groups. Pre-clearance was a central component of this effort to transform 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 review.
Adam Podowitz-Thomas (@RedistrictingA) is the senior legal strategist at the Princeton Gerrymandering Project and Electoral Innovation Lab.
Zachariah Sippy (@ZachariahSippy) is an analyst at the Princeton Gerrymandering Project and Electoral Innovation Lab.