If Section 5 of the Voting Rights Act is to survive, Congress must save it.
That’s the message Tuesday from the Supreme Court, which struck down the formula used to decide which parts of the country need preclearance from the Justice Department to change election practices.
“Congress may draft another formula based on current conditions,” Chief Justice Roberts wrote. How likely is that? Not very.
Just ask Sen. Chuck Schumer (D-N.Y.), who sits on the Senate Judiciary Committee.
“As long as Republicans have a majority in the House and Democrats don’t have 60 votes in the Senate, there will be no preclearance,” he said in a statement.
Section 5 was reauthorized back in 2006 — when Republicans controlled the House, the Senate, and the presidency. It passed the Senate unanimously and the House by a huge margin. And until the decision, Republicans largely avoided weighing in on the Supreme Court fight.
To see what’s changed, just look at Sen. Jeff Sessions (R-Ala.). In 2006 he voted both in committee and in the full Senate to reauthorize the law, despite his desire for some changes.
”Many of my citizens put their lives at risk to pass the Voting Rights Act,” he said at the time. ”It took a lot of courage and determination and leadership so I’m inclined to think this is something my constituents, African-Americans, whites and all constituents, want to see done in a friendly and effective way. They just don’t want to have a fight over this.”
Now, Sessions tells reporters the Supreme Court’s decision ”was good news, I think, for the South.”
Back in 2006, conservative House Republicans who balked at some provisions of the Voting Rights Act, in particular bilingual ballots, were at odds with allies in the Senate and the White House who hoped to win over Latino voters. Republicans were also heading into what they knew would be a bad election year.
Perhaps most importantly, then-House Judiciary Chairman James Sensenbrenner (R-Wis.) was also a longstanding advocate for the Voting Rights Act. But he has since clashed with Attorney General Eric Holder over use of the act to block voter ID laws. (Sensenbrenner is travelling and has not yet weighed in on the Court’s decision.) And Rep. Bob Goodlatte (R-Va.), who doesn’t have Sensenbrenner’s history of deep interest in the issue, now runs the committee.
House Speaker John Boehner (R-Ohio) — already struggling to corral his members on other issues – is deferring any questions about the Voting Rights Act to Goodlatte and House Administration Committee Candice Miller (R-Mich.). In statements, neither hinted at any legislative plan of action.
“Congressional Republicans have moved significantly to the right, even since 2006,” said Sarah Binder, a congressional expert at the Brookings Institution. “I think it would take an overwhelmingly Democratic Congress and control of the White House to rewrite the formula.”
Even then, drawing a new formula would be hugely contentious. When Democrats had that control, in 2009 and 2010 — and after Justice Roberts warned Congress that the law might not survive a future challenge – no new map was drawn. (Here’s the map of where preclearance currently applies.)
And a new map might not withstand future Supreme Court scrutiny.
“I don’t think Congress would pass a new formula. But if they did, it would be tough for it to be sustained, unless it was very carefully drawn and justified with lots of contemporary evidence,” said Richard Hasen, an election law expert at the University of California, Irvine.
Judiciary Committee Chairman Patrick Leahy (D-Vt.) is still planning to try. “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 promised. Senate Majority Leader Harry Reid (D-Nev.) has promised that the Senate will act.
It very well might. But that doesn’t mean a bill will hit President Obama’s desk any time soon.