When President George W. Bush signed the Voting Rights Act reauthorization in 2006, he reminded his audience that as a nation, “we’ve made great progress toward equality, yet the work for a more perfect union is never-ending.”
In the continued pursuit of that ever-elusive “perfection,” a bicameral, bipartisan group in Congress has proposed new legislation to amend a crucial portion of the VRA that the Supreme Court struck down in June.
The high court said the powerful civil rights-era law’s Section 4, the part that determines which jurisdictions must submit any voting changes to federal preclearance, must be updated with a new formula to reflect current conditions.
Preclearance is a measure designed to protect minorities against discriminatory practices in elections.
The court determined that the previous formula for subjecting jurisdictions to preclearance was based on historical data that kept some states and localities with no recent history of discrimination entrenched in a dark history that had long ago been shed.
Other states, like Texas, still struggle to draft and enforce even-handed voting measures.
In allowing the preclearance requirement itself to stand, the court invited Congress to re-consider how to make the formula more equitable and based on more contemporary and relevant circumstances.
The proposed legislation, drafted by Reps. John Conyers, D-Mich., and Jim Sensenbrenner, R-Wis., and Sen. Patrick Leahy, D-Vt., is the first meaningful attempt to accept that invitation.
The proposed legislation:
• Establishes a new formula for preclearance coverage based on current conditions. Any state or jurisdiction could trigger coverage based on a specific number of violations (five for a state, three for a jurisdiction, or one violation and “persistent, extremely low minority turnout”) in the last 15 years. Under this formula, Texas is one of four states that would remain subject to preclearance.
• Strengthens Section 3 by lowering the trigger requirements for “bailing-in” jurisdictions. Under the original language, federal courts could designate jurisdictions for preclearance because of intentional violations. The proposed legislation says the results of even non-intentional violations could trigger bail-in.
• Improves transparency by requiring jurisdictions to post voting changes on the Internet in advance of elections.
• Exempts judgments against “reasonable” voter ID legislation from counting as state violations. The proposed law has its flaws.
The new formula would unevenly prejudice larger states with many jurisdictions, such as Texas, making it harder for the state to release itself from its oversight burden.
This concern is exacerbated by the requirement for all counties, many of which don’t even have websites, to post all of their voting changes on the Internet.
John K. Tanner, voting rights expert and former head of the Justice Department’s Voting Section, says this would “be a huge mess for local governments since the question of what constitutes a voting change is very complex,” and many jurisdictions have failed to fully understand it, even after 40 years of preclearance coverage.
In the interest of equity and of avoiding further constitutional questions, the law should also offer the same protections to minority and nonminority voters, for example in districts where fewer than half the voters are white.
Other than as a ploy to gain votes for passage in Congress, the provision to exempt voter ID laws as possible triggers for preclearance requirements seems arbitrary.
The bipartisanship on this bill is encouraging, although it has a long way to go before becoming something that is fair, effective and politically palatable.
While perfection may never be achieved, every effort toward a less race-conscious society — one in which such legislation will one day not be necessary — is a step worth taking.