The Voting Rights Act, which enjoyed strong bipartisan support for nearly a half-century, divided senators along party lines Wednesday as they debated whether minority voters still face enough threats to warrant updating the landmark law.
Democrats, led by Senate Judiciary Committee Chairman Patrick Leahy of Vermont, said attempts to undermine minority voters remain pervasive, even if they’re less blatant than the tactics used when the law first passed in 1965.
“Since 2010, 22 states have passed new voting restrictions that make it more difficult to vote,” Leahy said, citing a new report from the Brennan Center for Justice. “Of the 11 states with the highest African-American turnout in 2008, seven of those have new restrictions in place.”
Republicans countered that the Voting Rights Act still includes plenty of safeguards against voting discrimination, even after the Supreme Court threw out a key provision a year ago.
So far, no Republican senator has endorsed legislation to restore that provision, which required certain jurisdictions with a history of voting discrimination to get advance approval — or “pre-clearance” — from U.S. Justice Department officials before making any changes to their election procedures.
“To pass a law in the U.S. Congress that provides penalties only to some states and not to others can only be justified for the most extraordinary circumstances,” said Sen. Jeff Sessions, R-Ala. “And the justification no longer exists.”
The Judiciary Committee held a hearing Wednesday on Leahy’s bill to require that states with at least five voting rights violations in the last 15 years again submit to pre-clearance.
The proposal directly responds to last year’s Supreme Court decision, which ruled that the 1965 formula for determining which jurisdictions were subject to pre-clearance was outdated and didn’t reflect years of racial progress.
The proposal would immediately return Texas, Louisiana, Georgia and Mississippi to strict federal oversight. It wouldn’t return South Carolina and Alabama immediately.
But states could be added to or removed from the list based on how many times they were caught making election-related changes that disenfranchise minority voters.
Democrats say pre-clearance is essential because it allows for potentially discriminatory actions to be blocked before they take effect, rather than waiting for someone to file a lawsuit after the fact.
An employee who wins a discrimination case can get his job back but a minority voter who was blocked from the ballot box can’t get a new election, said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund.
Ifill, who testified in support of Leahy’s bill, cited recent cases in which polling places with large numbers of minority voters were moved to locations inaccessible by public transportation.
In other cases, she said, local district elections were changed to at-large elections in order to eliminate majority-Latino districts.
“It’s at the local level where the greatest mischief has occurred,” Ifill said.
A state senator from Texas and the president of the NAACP in Georgia testified about specific instances of voter disenfranchisement in their states since the Supreme Court ruling last year. They asked lawmakers to restore pre-clearance for their states.
Witnesses called by Republicans didn’t dispute that voter discrimination still exists, but challenged the notion that the extraordinary pre-clearance approach is necessary to stop it.
In 1965, pre-clearance was intended to serve as a temporary response to rampant racism in the South. Congress repeatedly renewed it over the years, with strong bipartisan votes.
But in the wake of the Supreme Court decision — in a case out of Shelby County, Ala. — Republicans are less inclined to write a new formula.
“There is just no need for it,” said Washington attorney Michael Carvin.
He said Section 2 of the Voting Rights Act, which allows people in all 50 states to file suit to fix election-related wrongdoing, “is a very effective remedy for any form of unconstitutional discrimination.”
By design, Leahy’s bill initially would restore pre-clearance to only four states, which Carvin said effectively acknowledges Section 2 as an effective deterrent.
Alabama was among states that were subject to pre-clearance beginning in since 1965 but wouldn’t return to that status under Leahy’s bill.
“They need to explain why the four states that are covered, why are they so materially different from states like Alabama?” Carvin asked.
At the heart of the debate is whether modern-day state and local officials can be trusted to run fair elections.
Sen. John Cornyn, R-Texas, said the proposed law “imposes a presumption of guilt” on certain states.
In the audience for Wednesday’s hearing was Ernest Montgomery, a member of the Calera City Council in Alabama and one of several black residents who intervened in the Shelby County lawsuit to try and protect pre-clearance.
He said any update to the Voting Rights Act should restore pre-clearance for Alabama.
“It would make our state leaders much more cautious about having any more violations and make sure we do the right thing,” Montgomery said.
The House version of Leahy’s bill has attracted support from some Republicans, including Reps. James Sensenbrenner of Wisconsin and Spencer Bachus of Alabama.
“It would be a travesty if the Voting Rights Act were to become partisan for the first time in our nation’s history,” Leahy said.