This post has been updated
Yesterday was the one-year anniversary of the Supreme Court's decision on Shelby County v. Holder, which invalidated part of the 1965 Voting Rights Act. The Senate Judiciary Committee held a hearing on Sen. Patrick Leahy's (D-Vermont) proposed Voting Rights Act amendment to commemorate the occasion.
"From its inception through several reauthorizations the Voting Rights Act has always been a bipartisan, bilateral effort," Leahy said, "and it would be a travesty if it became partisan for the very first time in this nation's history."
What was Leahy talking about? In 2006, when the Voting Rights Act was last reauthorized, no Republican senators voted against it. In 2014, no GOP senators have stepped forward to co-sponsor the amendment to update it.
Republicans at the hearing echoed the five justices who struck down part of the act last June, saying that the Section 4 formulas used to decide which states the Justice Department would monitor for discrimination were outdated. "It should apply to Minnesota, it should apply to Vermont, it should apply to the entire country,” Sen. John Cornyn (R-Texas) said, not just the Southern states originally targeted by the act. “It imposes a presumption on guilt that is not born out by the evidence.”
Sen. Chuck Grassley (R-Iowa) told the committee that the Voting Rights Act works well enough without Section 4. "No one should doubt that voter discrimination is less widespread than it was in the 1960s. The current voting rights act is strongly enforced and is protecting the rights of all Americans to vote.”
Despite the seeming about-face of support, there were signs that Republicans were starting to doubt the relevancy of Section 4 in 2006. Georgia Senator Saxby Chambliss, sounding much like Cornyn did on Wednesday, said in 2006, “Other states with much less impressive minority progress and less impressive minority participation are not covered, while Georgia still is. This seems both unfair as well as unwise.”
However, he didn't oppose the reauthorization that year.
In the House, Rep. David Scott (D-Georgia), said of his Republican colleagues, “Their goal has been one thing and one thing only: to kill the Voting Rights Act." Only 33 Republicans voted against the act in the House that year.
The House version of the new Voting Rights amendment has ten Republican co-sponsors led by Wisconsin Rep. Jim Sensenbrenner — who also led the efforts to reauthorize the the act in 2006. Although there are GOP supporters of the bill, there are no plans to schedule hearings on it anytime soon.
First, Republicans held the majority in Congress and the White House in 2006. The president, previously governor of a state governed by preclearance, supported an unchanged Voting Rights Act. In a speech President George W. Bush gave to the NAACP shortly before the VRA was reauthorized in 2006, he thanked the "members of the House of Representatives for re-authorizing the Voting Rights Act. Soon the Senate will take up the legislation. I look forward to the Senate passing this bill promptly without amendment so I can sign it into law."
After Democrats swept into the majority at the end of the year, the Republican Party lost much of its ability to corral ornery outliers to a party line — something it has failed to gain back to this day.
The status quo of the Voting Rights Act also shifted after Shelby County. While preclearance in the South and a few other regions was once the status quo, now it isn't. The criticisms that Republicans had about the law in 2006 have been answered and require no further dismantling from Congress. Since Shelby County, the Justice Department and other entities have relied on Section 2 -- which puts the burden of proving discrimination on the plaintiff, and applies to the entire country -- to challenge new election laws.
Since 2006, many state houses across the country have trended conservative, spurred by the recession and the power of conservative organizing in 2010. Many of these state governments have passed laws to counter voter fraud or decrease election spending, laws that also can create burdens for minority and low-income voters. Some federal legislators are surely being nudged by their state-level counterparts back home, who would rather their election law did not receive increased scrutiny under an updated Section 4.
Or, you could use the Justice Scalia reasoning for why the unanimous support for the intact Voting Rights Act has evaporated. While debating another voting rights case in 2008, he explained away the 98-0 vote by saying, “The Israeli supreme court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.” According to Scalia, the unanimous vote augured future problems with the Voting Rights Act to begin with. It's not an argument you're going to hear much from either side, but it does remind us that there are many, many reasons that the GOP isn't supporting an effort to return the Voting Rights Act to its former power.
There are still potential ways that the Voting Rights Act's support could trend bipartisan in the Senate once more. Mississippi Sen. Thad Cochran — who narrowly won a primary runoff Tuesday night, thanks in part to Democratic black voters — said this week, "Voting rights has been an issue of great importance in Mississippi. People have really contributed a lot of energy and effort to making sure the political process is open to everyone.” However, he also said that the Shelby County decision reflected the great strides Mississippi had made since 1965. Kentucky Sen. Rand Paul told reporters on Wednesday, "I'm for more people voting, not less people voting."
Other senators are also introducing narrower legislation to improve voting. New York Sen. Kirsten Gillibrand is trying to make online voter registration universal — a policy change endorsed by the Presidential Commission on Election Administration and secretaries of state across the country. States are introducing more legislation to improve voter access than restrict it.
It may take an impossibly slow time — par for the course for federal government (thanks Federalist Papers) — but Congress could warm up to amending the Voting Rights Act. Whether it gets to it before the November election depends completely on whether Republicans decide to support Section 4, despite their reservations, as they have before.
Correction: This post originally said that there are five co-sponsors to the VRA amendment in the House. There are 10 -- more have joined since the Sensenbrenner press release cited was released.