The recently proposed Voting Rights Act Amendment (VRAA) embodies the ambitious purpose of not only reanimating federal preclearance provisions invalidated by the U.S. Supreme Court this past summer, but it also contemplates a more robust method of adding offending states and local jurisdictions to preclearance supervision beyond the coverage formula.
While the main purpose of the VRAA is to update an outdated coverage formula for determining which jurisdictions are subject to preclearance pursuant to the Shelby County v. Holder decision, the proposed legislation does much more. In particular, it expands the statute’s bail-in provisions, which determine under what circumstances a court could require preclearance for a jurisdiction even if it does not qualify for it under the statutes’ coverage formula.
The original bail-in requirements under section 3(c) of the Voting Rights Act allows a court to require preclearance if a jurisdiction is found to have purposefully discriminated in violation of the 14th or 15th Amendments. This would include unconstitutional racial gerrymandering, illegal barriers to minority voting or any other evidence of intentional discrimination in voting.
The new, expanded proposal would add “any” statutory violation of voting rights- including those found under section 2 of the Voting Rights Act. These infractions while still considered impermissible voting rights violations include unintentional violations, such as redistricting maps that result in the dilution of minority votes, but not as a result of any intentional discrimination.
The VRAA would make the trigger on preclearance much more sensitive than it originally was and at least one election scholar fears that these provisions may not stand up in court. Florida State University College of Law Professor Franita Tolson makes the point:
“As it currently stands, section 3(c) is constitutional because its intentional discrimination requirement is identical to the constitutional standard for establishing violations of the Fourteenth and Fifteenth Amendments. Under Supreme Court precedent, Congress has to amass a record of purposeful discrimination by a state to justify legislation that imposes liability for actions that do not amount to intentional discrimination, …[it is] unlikely that there is a record of purposeful discrimination sufficient to justify bailing in a jurisdiction under section 3(c) for any violation of a federal voting rights law, particularly if those actions lack discriminatory intent.”
Her fears do not end there; Tolson believes that if passed in its original form the VRAA could endanger section 2 of the VRA itself should the U.S. Supreme Court hear a challenge to the VRAA; and it most certainly will if the legislation is enacted.
Of course that is a big “if” regarding whether the VRAA will pass both houses in its current form and be signed into law. At this point, the legislation is ripe for amending and there is no sense yet as to whether the legislation has the legs it needs to pass through a divided congress.