[EL] today's hearing and fixing the Voting Rights Act
Rick Hasen
rhasen at law.uci.edu
Wed Jul 17 12:38:38 PDT 2013
The Chances of a Deal to Fix the VRA After Shelby County?
Observations about the Senate Judiciary Committee Hearing
<http://electionlawblog.org/?p=53094>
Posted on July 17, 2013 12:34 pm <http://electionlawblog.org/?p=53094>
by Rick Hasen <http://electionlawblog.org/?author=3>
I had a chance to watch a good part of the Senate Judiciary Committee
hearing
<http://www.judiciary.senate.gov/hearings/hearing.cfm?id=6ae289b2466e2489f90d6b42c9d8d78f>
today. It makes me more pessimistic about the chances of a deal to
improve the Voting Rights Act after the Supreme Courteffectively
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612> gutted
<http://www.nytimes.com/2013/06/26/opinion/the-chief-justices-long-game.html>
section 5 in the Shelby County
<http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/> case.
Back in February I organized a Reuters Opinion symposium
<http://www.reuters.com/subjects/voting-rights> on what Congress could
do if the Supreme Court struck down section 5. My thinking was that such
a decision would be controversial and Republicans might jump at the
chance to fix the Act to improve their position with minority voters.
(It's a point I reaffirmed inthis NY Times oped
<http://www.nytimes.com/2013/06/26/opinion/the-chief-justices-long-game.html>.)
Symposium participants offered good ideas for improvements, and after
the decision Rick Pildes had an important post on increasing the use of
"bail in" <http://electionlawblog.org/?p=52349>as another alternative. I
noted in the Reuters piece that I did not expect a new coverage formula
to emerge, and one question would be whether a VRA fix would look more
like a race-based remedy or more like an election administration ("We've
got to fix that") remedy.
Today's hearing showed how far apart Democrats and Republicans are. The
Democrats seemed to be grandstanding (as when Sen. Durbin attacked ALEC)
or living in a different universe (as when Sen. Klobuchar asked
questions about same day voter registration). Sen. Whitehouse talked
about voter fraud as a non-existent problem. These are not the ways to
get at a bipartisan compromise on new VRA legislation.
Republicans in contrast, were mostly absent from the hearing. Sen.
Sessions, who questioned me (and others) so intently in 2006 when the
VRA was up for renewal, was absent today. Only Sens. Grassley and Cruz
asked questions. Sen. Grassley made it clear
<http://thinkprogress.org/justice/2013/07/17/2316941/top-gop-senator-says-voting-rights-act-should-be-held-hostage-to-protect-voter-id/>
that any new legislation should not regulate voter id. The Republicans'
main witness, Mike Carvin, pushed the idea
<http://judiciary.senate.gov/pdf/7-17-13CarvinTestimony.pdf> that
Section 2 of the VRA is enough to protect minority voting rights, an
idea that Sen. Cruz also pushed.
Let's be clear. Section 2 is no substitute for section 5. It has
virtually no teeth these days outside of the redistricting area (and
most areas that require redistricting under section 2 already have
been). It has not been used successfully go to after voter id, and it
would be hard to use it (given the statutory standard) to go after
problems with voter registration and long lines (an issue Carvin said
had nothing to do with racial discrimination or section 5.)
Even worse, if courts start reading section 2 more broadly to cover
things like voter id, then section 2 itself could be found by the
Roberts Court to be unconstitutional. This is not fanciful. I indicated
<http://www.scotusblog.com/2013/06/the-curious-disappearance-of-boerne-and-the-future-jurisprudence-of-voting-rights-and-race/>
the day /Shelby County/ came out that I expect section 2 and the section
203 to be the next line of attack for conservatives unhappy with
race-based legislation. As Sam Bagenstos noted
<https://twitter.com/sbagen/status/357567082902196225>, Mike Carvin has
already signed a brief <http://t.co/y83UebJ0qw> arguing section 2 is
unconstitutional.
Republicans may claim section 2 is good enough but it does not
substitute for thebargaining chip
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/01/voting_rights_act_what_s_lost_if_the_supreme_court_kills_it.html>
for minority voters that was section 5.
If there seems to be little common ground in the Senate, there is even
less in the House. The first House hearing tomorrow will be chaired
<http://tv.msnbc.com/2013/07/15/republicans-hand-first-hearing-on-voting-rights-act-to-opponent-of-voting-rights-act/>by
one of the only members of Congress to vote against the 2006
reauthorization of the VRA. Democrats have done nothing so far to bring
other Republicans along, aside from Rep. Sensenbrenner, who was a key
player in the 2006 reauthorization.
In his excellent testimony
<http://judiciary.senate.gov/pdf/7-17-13LevittTestimony.pdf> today,
Justin Levitt noted that the VRA in the past had always had broad
support from strong bipartisan majorities. Unfortunately things have
changed. Partisanship in Congress is much worse than even in 2006.
Congress rarely can effectively respond t
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2130190>o Supreme
Court rulings. When Congress does respond these days, it is usually when
one party has control of both Congress and the Presidency, not today's
conditions.
In the near term, a VRA fix seems unlikely. Today I miss Sen. Arlen
Specter, who in 2006 was the Senator most interested in looking for
bipartisan compromise on voting rights. Who will take his place now?
Senator Cruz? Senator Durbin?
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<http://electionlawblog.org/?cat=25>, political polarization
<http://electionlawblog.org/?cat=68>, The Voting Wars
<http://electionlawblog.org/?cat=60>, Voting Rights Act
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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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