Democrats in the House and Senate recently unveiled the Voting Rights Advancement Act of 2019 (“VRAA”), the latest version in a series of bills intended to restore the coverage formula invalidated in Shelby County v. Holder. Democrats decoupled the VRAA from H.R. 1—the omnibus voting rights and campaign finance bill introduced in January—because the inevitable constitutional challenge requires Congress to build a legislative record of racial discrimination in voting. Although the VRAA is unlikely to survive the Senate in the near future, it will almost certainly pass the House, and the record that Congress starts building today will come in handy if and when the VRAA is enacted into law. In this post, I discuss how the new VRAA resembles and differs from prior versions of the bill and highlight an overlooked provision—namely, practice-based preclearance—that should receive more attention from the voting rights community.
Some aspects of the new VRAA mirror previous versions. The VRAA revises Section 3(c) to authorize “bail-in” based on a statutory violation, an important change that I’ve defended elsewhere. There are also pro-transparency provisions that will make it harder for States and localities to hide problematic voting changes in the run-up to an election. And the Senate version continues to create additional protections for Native Americans living on reservations.
In a significant development, the House and Senate versions of the VRAA now adopt the same coverage formula. As I noted previously, the coverage formulas found in prior versions of the VRAA contained disparate time horizons and different definitions and numbers of “voting rights violations” for triggering preclearance Although this newfound agreement is welcome news for many in the voting rights community, I continue to believe that a revised Section 3(c) can accomplish most of the work of a new coverage formula, without raising equal-sovereignty concerns or necessitating costly political compromises.
Under the new VRAA, a State and all the political subdivisions within that State are covered if, during the past twenty-five years, there were fifteen or more voting rights violations or ten or more voting rights violations and at least one of those violations was committed by the State itself. The new VRAA would also cover a political subdivision—such as a county—if three or more voting rights violations occurred within that jurisdiction in the past twenty-five years. Coverage under the VRAA would be “rolling” and last ten years.
In addition, the House and Senate versions now have the same triggers for coverage: a violation of the Fourteenth or Fifteenth Amendments, a violation of the VRA, a denial of preclearance, or a settlement that resulted in the alteration or abandonment of a voting rights practice that had been challenged as racially discriminatory. The coverage formula has also been tightened up. Unlike prior versions, the new VRAA does not trigger coverage based on persistently low levels of minority voter turnout. This is a positive development, as basing coverage on such a proxy—which is neither a constitutional nor a statutory violation—would have opened up the coverage formula to challenge.
One aspect of the VRAA that has not attracted sufficient attention from the public or the voting rights community is the requirement that certain election laws automatically be subject to preclearance. Found in Section 4A of the VRAA, this “practice-based preclearance” would apply nationwide and would cover election law changes that have proved particularly problematic in the past. Some of these changes—such as modifying jurisdictional boundaries or adding at-large seats in areas with high minority populations—are going to affect mostly local jurisdictions. Others—such as requiring preclearance of voter qualification laws, including voter ID laws—will generally impact States.
Perhaps the lack of attention to this proposal—which was included in older versions of the bill—is due to the politically powerful desire to overturn Shelby County. Indeed, the continued attempts to reinvigorate the coverage formula embody this sentiment. Or perhaps it is an implicit concession that a nationwide preclearance regime is unlikely to ever be enacted into law.
And even if practice-based preclearance survives the legislative process, it raises distinct constitutional questions. To be sure, practice-based preclearance does not implicate the equal sovereignty principle, but it still “imposes substantial federalism costs.” On the one hand, practice-based preclearance would cover a high percentage of practices that received objections under the old Section 5 regime or have sparked litigation in recent years. But on the other hand, it does so without any finding as to the particular jurisdiction’s likelihood of engaging in racial discrimination in voting—a stark departure from the approaches taken by Section 3(c) and the old and proposed coverage formulas. In addition, the new VRAA’s practice-based preclearance is not limited to federal elections, which means Congress cannot rely on its expansive power under the Elections Clause to preempt state laws. A narrower practice-based preclearance—say, one that applied to congressional redistricting plans—would be more defensible under the Elections Clause.
With the introduction of the new VRAA, the House is undertaking the long overdue task of responding to Shelby County. In the months and years ahead, the voting rights community should continue developing ways for preclearance to protect minority voting rights and deter racially discriminatory conduct.