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Opinion How Congress should fix the Supreme Court’s damage to the Voting Rights Act

Activists rally outside City Hall in Los Angeles on July 7, calling on Congress to pass the For the People Act to expand voting rights. (Frederic J. Brown/AFP via Getty Images)

Let’s not lament the Supreme Court’s decision last week drastically limiting the reach of the Voting Rights Act. Instead, let’s work quickly to make it irrelevant.

The court was interpreting an admittedly ambiguous portion of the law. While the court’s reading was especially restrictive, it is within Congress’s power to rewrite the statute so it is unambiguously effective. The good news is that the solution involves something that is already on the congressional agenda, and is close to what Sen. Joe Manchin III (D-W.Va.) has already proposed.

It would look like this: Congress would adopt a new preclearance provision that would require all states and localities — not just those whose history of discrimination subjects them to closer scrutiny — to submit proposed changes to the Justice Department or a federal court for approval. To insulate the law from constitutional challenge, however, the preclearance requirement would only apply to congressional elections.

To understand why this approach is advisable, maybe even essential, consider how the court has eviscerated the Voting Rights Act in the short span of eight years. First, in Shelby County v. Holder, it nullified the preclearance requirement of Section 5 of the act because it covered only parts of the country with a history of voting discrimination. Coverage was unconstitutionally based on outdated data, according to the court.

Then, in Brnovich v. Democratic National Committee, the court narrowed — and neutered — Section 2, which allows challenges to laws after they are enacted that make the democratic process not “equally open” to all races. Section 2 is the only part of the law with nationwide scope.

Recent history has proved that racially discriminatory changes to voting rules can occur in states that weren’t covered previously, such as Ohio or Wisconsin, as well as in states that were part of the Confederacy and continue to threaten equal voting rights, such as Georgia or Texas. A reinvigorated regime to stop state laws from denying Americans equal access to the ballot box should apply to all Americans, regardless of where they reside.

At the same time, however, Congress should limit the preclearance obligation only to changes in state and local electoral procedures that affect congressional elections. The reason for this limitation is to avoid the risk that the Supreme Court, clearly suspicious of expansive federal protection of voting rights, might rule the restored preclearance requirement unconstitutional.

The constitutional considerations are completely different depending on whether Congress is legislating for elections to state and local offices — such as governor or mayor — or instead legislating only for congressional elections. Whenever Congress attempts to regulate state elections, it must justify its authority under the 14th or 15th amendments, a harder test.

But Congress would adopt a new preclearance provision solely for congressional elections under an entirely separate source of power: Article I, Section 4, which gives Congress power to “at any time by Law make or alter” any regulations that states have adopted governing the “Times, Places and Manner of holding elections for Senators and Representatives.”

Surely, this power entitles Congress to require states to submit changes to their election procedures for prior approval. Moreover, making preclearance nationwide, rather than covering some states but not others, avoids the court’s concern in Shelby County that Congress not treat equally sovereign states unfairly.

As a practical matter, limiting nationwide preclearance to just congressional elections should do the trick in terms of preventing discriminatory election rules. Most states hold elections for state and local offices at the same time as congressional elections, using the same procedures. Thus, if a state changes its rules for voter registration or voter identification in a way that would affect an upcoming congressional election, the change is likely to affect state and local elections as well.

Congress can also add an anti-gerrymandering standard to the provision. As long as Congress is legislating just for congressional elections, Congress unquestionably has the power to require states to refrain from unfair manipulation of district boundaries when drawing new maps for House elections.

Consequently, Congress should include in its new nationwide preclearance requirement this extra element: No state may redistrict House seats in a way that would deny candidates and voters fair electoral competition. This standard, enforceable by federal courts and the Justice Department, would block efforts by state legislatures to draw maps that give one party an unfair advantage.

This new requirement would pose extra work for the Justice Department and courts, but it shouldn’t be too onerous. If there’s nothing problematic with a rule change, approval should be unopposed, and swift. If the change is discriminatory, preclearance puts the brake on the change until the state can justify it, rather than forcing voters to sue after the fact.

Of course, enacting this requirement would almost certainly require senators to reform the filibuster. But if there’s one measure worthy of filibuster reform, this is it: to undo the court’s voting rights damage and prevent the partisan subversion of democracy.

Read more:

Paul Waldman: The Supreme Court won’t stand up for voting rights. But some state courts will.

Sean Morales-Doyle: The Supreme Court clearly won’t protect voting rights. But Congress can.

The Post’s View: The Roberts court systematically dismantles the Voting Rights Act

Nicholas Stephanopoulos: The Supreme Court showcased its ‘textualist’ double standard on voting rights

Paul Waldman: The Supreme Court’s new ruling confirms it’s the enemy of democracy