[EL] initial thoughts on VRAA
Rick Hasen
rhasen at law.uci.edu
Thu Jan 16 13:33:59 PST 2014
nitial Thoughts on the Proposed Amendments to the Voting Rights Act
<http://electionlawblog.org/?p=58021>
Posted on January 16, 2014 1:32 pm
<http://electionlawblog.org/?p=58021>by Rick Hasen
<http://electionlawblog.org/?author=3>
I have now had a chance to review the text the Voting Rights Amendments
Act of 2014
<http://www.campaignlegalcenter.org/images/Voting_Rights_Amendment_Act_of_2014.pdf>
introduced today by Representatives Sensenbrenner and Conyers (with
parallel legislation being introduced by Senator Leahy in the Senate). I
believe parts of the VRAA are likely constitutional (including the new
coverage formula), parts are likely unconstitutional (new bail in), and
most of it is sensible policy. But I am very pessimistic about the
legislation passing out of the House. Ironically, I think if this were
the bill introduced in 2006 to amend the VRA, it would not only have
passed both Houses of Congress and become law, the Supreme Court would
have been very likely to uphold the measure as constitutional despite
its constitutional problems. I'll address each point in turn. (Ari
Berman
<http://www.thenation.com/blog/177962/members-congress-introduce-new-fix-voting-rights-act#>
offers a summary of the major provisions, which I won't repeat here.)
*1. The constitutional parts.* There is lots of good and constitutional
stuff in this bill. The idea of requiring jurisdictions making election
changes to publicize them on the Internet is a terrific idea, and allows
for timely lawsuits if necessary to combat draconian voting changes
throughout the country. Disclosure
<https://twitter.com/HHHElections/status/423919481245548544> is an
unmitigated good here, and it is hard to see any constitutional
objection. Similarly, making it easier to get preliminary injunctions in
section 2 cases makes a lot of sense, and clears procedural hurdles
without infringing on state sovereignty.
*2. New coverage formula likely constitutional. *The new coverage
formula pegged to relatively recent voting rights violation is likely,
but not certain, to be held constitutional if enacted. The benefit of
this new formula is that it is tied to current conditions---looking at
recent voting rights violations, and in the case of subdivisions, recent
minority voter turnout statistics. This tends to defeat the /Shelby
County/ holding that requires under principles of "equal sovereignty" of
states that any preclearance regime be tied to current conditions. (For
my critique of these principles, see *Shelby County and the Illusion of
Minimalism, /William and Mary Bill of Rights J./ (forthcoming 2014)
(draft available
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612>)*.) The
one caveat is that counted among the kinds of voting rights violations
which could trigger the renewed preclearance are section 2 violations
and also section 5 violations before the /Shelby County/ decision. This
means that preclearance would be imposed on jurisdictions for conduct
which, while a statutory violation, is not a /constitutional /violation.
The Roberts Court could see this as too much of an infringement on state
sovereignty (and beyond Congress's power to impose a "congruent and
proportional remedy" for constitutional violations), because it puts
states to the strong medicine of preclearance without proof of
unconstitutional conduct. [Because Sen. Sensenbrenner thinks voter id
laws are just fine, suits based on voter id would not count toward the
new coverage formula.]
*3. New bail-in procedures likely unconstitutional. *The current version
of the VRA provides that jurisdictions which engage in intentional
racial discrimination in voting can, at the discretion of a court, be
put back under federal preclearance for up to 10 years. The VRAA would
expand the bail-in rules to allow for bail-in even when the jurisdiction
has engaged in voting rights violations which are based on
discriminatory effects, and not intentional conduct. This was
essentially Travis Crum's recent proposal.
<http://electionlawblog.org/?p=52659> For the same reasons raised in my
last point, but more clearly in relation to bail-in, I am quite
skeptical the current Court would allow states or political subdivisions
to be bailed back into coverage based upon conduct which has not been
found to be unconstitutional. Doing so would exceed Congress's power to
enforce the 14th and 15th amendment and violate principles of state
sovereignty by being not congruent and proportional to the extent of
state violations. To be clear, that's now how /I /would read the
Constitution. This is instead is a predictive judgment about how the
current Roberts Court would decide these congressional power questions.
*As a matter of policy,* I really like the VRAA. I'm just not convinced
5 Justices would uphold this part. [Franita Tolson goes
<https://twitter.com/ProfTolson/status/423878063298838528>further and
argues that the revision to section 3 could tear down section 2 as well.]
*4. The politics and path dependence.* Despite these constitutional
issues, I would bet that the VRAA would have passed in 2006 and the
Supreme Court would have upheld it despite the constitutional issues
flagged in points 2 and 3 above. The Supreme Court would have seen
Congress making a broad and real effort to update the coverage formula,
and to take steps toward winding down broad preclearance. But path
dependence is everything. Congress did not act, even after the Supreme
Court's ruling in /NAMUDNO/ in 2009 warning the act was
unconstitutional. /Shelby County/'s equal sovereignty principle now
hangs out there as the law.
In the meantime, AG Holder hasantagonized Texas Republicans
<http://www.nationallawjournal.com/id=1202613130666/Holders+TexasSize+Gambit+Will+It+Save+the+Voting+Rights+Act%3Fmcode=0&curindex=0&curpage=ALL>
and Tea Party types by going after Texas and North Carolina for bail in.
Texas Republicans will not be happy they get covered again under the new
VRAA coverage formula. Conservatives in the House will fight against
this. It is not clear that John Boehner will want to expend political
capital on this (though the optics of supporting voting rights can be
good---it will come with a lot of resistance). I also expect opposition
among Senate Republicans, where, for legislation, the filibuster remains
alive and well. Will Sen. Reid make this a priority? I am pessimistic
that with the general dysfunction of Congress in particular and
antagonism over singling out certain states now, the Act will pass out
of Congress.
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D58021&title=Initial%20Thoughts%20on%20the%20Proposed%20Amendments%20to%20the%20Voting%20Rights%20Act&description=>
Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>
--
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
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140116/ec549463/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140116/ec549463/attachment.png>
View list directory