New Fix for the Voting Rights Act

As written, this bill does not protect the rights of racial minorities against discrimination at the polls. The North Carolina State Conference of Branches of the NAACP is not willing to accept any legislation which does not mandate that North Carolina is designated as a covered jurisdiction.

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Brentin Mock

The North Carolina NAACP Responds to "The Voting Rights Amendment Act of 2014"
Randolph County North Carolina NAACP Facebook
January 19, 2014

DURHAM - While the North Carolina State Conference of the NAACP appreciates the fact that a bipartisan effort has been made to amend and update the 1965 Voting Rights Act, we have some serious concerns and objections to the proposal which has just been introduced in the U.S. Congress. On January 16, 2014, Congressmen John Conyers (D-MI), Jim Sensenbrenner (R-WI) and other co-sponsors introduced legislation which is intended to replace Section 4 of the 1965 Voting Rights Act. This provision was declared unconstitutional by the United States Supreme Court in its recent Shelby County v. Holder decision. That decision had the effect of gutting the Section 5 pre-clearance mandate of the Voting Rights Act. Since 1965, the Section 5 mandate had been successfully used by the United States Department of Justice and Civil Rights organizations to prevent covered jurisdictions from enacting voting laws and regulations which had the effect of discriminating against racial minorities.

A preliminary examination of the proposed provisions of this legislation convinces us that it falls woefully short of what is needed to protect all people from race-based efforts to curtail the voting potential of people of color. We certainly see this proposal as a starting point, there is much work to be done before these provisions can be deemed to be equivalent to the protections which Section 5 provided over the years.

Another major defect with this proposed legislation is the exemption that the law would provide for voter identification statutes. Voter ID is an abhorrent and offensive to voting rights as were poll taxes and the literacy tests which are now outlawed by the Voting Rights Acts. The exemption which the bill drafters seek to give to Voter ID legislation is no more than a pandering to right wing regressive political forces who are the present-day architects of voter suppression efforts around the country.

Any voting rights proposal which does not recognize and address the widespread voting suppression efforts which are presently occurring in North Carolina is defective. As presently written, the proposal would not mandate that North Carolina be designated as a jurisdiction which would be subject to pre-clearance This is the State which leads the country in recognized and judicially determined voting rights violations since the introduction of the 1965 Voting Rights Act. This long history dates back to the landmark cases of Thornburg v. Gingles in 1986 and Shaw v. Hunt in 1992. In response to the passage of the most sweeping voter suppression legislation in the United States, North Carolina is presently being sued in State and federal courts for enacting laws designed to curtail the votes of racial minorities. Passage of this proposed legislation would have the effect of endorsing the race-based actions of the North Carolina General Assembly. The North Carolina State Conference of Branches of the NAACP is not willing to accept any legislation which does not mandate that North Carolina is designated as a covered jurisdiction.

As written, this bill does not protect the rights of racial minorities against discrimination at the polls. As the nation's oldest and largest Civil Rights organization with a massive membership base, we have the responsibility to insure that any legislation which is enacted must protect the best interests of our members, our community and the democratic principles espoused in our constitution. Our mission is to stand on the side of equal protection under the law and not to merely celebrate political compromise, especially where it has the intent or effect of undermining our hard-won political victories. In that light, this legislation looks like an effort to proclaim that this is the best that we can do with these Republicans in power rather than being drafted from the perspective of "how do we maximize political protections for racial minorities which are consistent with our constitution and the 1965 Voting rights act?". Political protections in our democracy should be unfettered, the rights of every voter should be recognized and every vote must be properly counted.

Accordingly, we plan to meet with North Carolina's elected leaders in the U.S. House and Senate as well as our National NAACP leadership to amend and fix this proposed legislation. We have already contacted other State Branches of the NAACP and other Civil Rights organizations who oppose and/or support this proposal. It is our plan to fight as hard to amend and fix this proposal as we are presently fighting against the voter suppression efforts here in North Carolina.

One of the most important and fundamental rights of racial minorities is the right to vote. Since the NAACP was organized in 1909, voting rights has been at the top of our agenda and it remains in that position today. Voting rights is the life-blood of a vibrant and politically connected people and we will not stand by passively and allow political compromise to destroy the hard-gained victories for voting rights for racial minorities in this country. We look forward to an opportunity to engage in the debate about this proposed legislation as this idea moves through the legislative process. We will call upon the 1,200 NAACP units from around the country to monitor their districts for additional evidence of racially discriminatory voting practices in their locales which can serve as further examples of the concerns and objections which we presently have about this proposal.

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Members of Congress Introduce a New Fix for the Voting Rights Act
Ari Berman
The Nation
January 16, 2014

Today Representatives Jim Sensenbrenner (R-WI) and John Conyers (D-MI) and Senator Patrick Leahy (D-VT) introduced legislation to strengthen the Voting Rights Act of 1965 in the wake of the Supreme Court’s decision last June invalidating a critical section of the VRA. The legislation, known as “The Voting Rights Amendment Act of 2014,” represents the first attempt by a bipartisan group in Congress to reinstate the vital protections of the VRA that the Supreme Court took away.

In the Shelby County v. Holder ruling on June 25, 2013, the Court’s conservative majority struck down Section 4 of the VRA, the formula that compelled specific states with a well-documented history of voting discrimination to clear their voting changes with the federal government under Section 5 of the VRA. The two provisions were always meant to work together; without Section 4, Section 5 became a zombie, applying to zero states.

Section 4 covered nine states (Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia) and parts of six others (in California, Florida, Michigan, New York, North Carolina, South Dakota) based on evidence of voting discrimination against blacks and other minority groups dating back to the 1960s and 1970s. Since the Shelby decision, eight states previously covered under Section 4 have passed or implemented new voting restrictions. This includes onerous new laws in states like North Carolina and Texas, which the Justice Department objected to under other provisions of the VRA (Sections 2 and 3).

The Sensenbrenner-Conyers-Leahy bill strengthens the VRA in five distinct ways:

1: The legislation draws a new coverage formula for Section 4, thereby resurrecting Section 5. States with five violations of federal law to their voting changes over the past fifteen years will have to submit future election changes for federal approval. This new formula would currently apply to Georgia, Louisiana, Mississippi and Texas. Local jurisdictions would be covered if they commit three or more violations or have one violation and “persistent, extremely low minority turnout” over the past fifteen years.

The formula is based on a rolling calendar, updated with a current fifteen-year time period to exempt states who are no longer discriminating or add new ones who are, creating a deterrent against future voting rights violations. It’s based on empirical conditions and current data, not geography or a fixed time period—which voting rights advocates hope will satisfy Chief Justice John Roberts should the new legislation be enacted and reach the Supreme Court.

The new Section 4 proposal is far from perfect. It does not apply to states with an extensive record of voting discrimination, like Alabama (where civil rights protests in Selma gave birth to the VRA), Arizona, Florida, North Carolina, South Carolina and Virginia, which were previously subject to Section 5. Nor does it apply to states like Ohio, Pennsylvania and Wisconsin that have enacted new voting restrictions in the past few years.

Moreover, Department of Justice objections to voter ID laws will not count as a new violation. Voter ID laws can still be blocked by DOJ in the new states covered under Section 4, but that will not be included as one of the five violations needed to keep the state covered. This exemption for voter ID laws was written to win the support of House majority leader Eric Cantor and other Republicans.

2: The legislation strengthens Section 3 of the VRA, which has been described as the Act’s “secret weapon.” Under Section 3, jurisdictions not covered by Section 4 could be “bailed-in” to federal supervision, but plaintiffs had to show evidence of intentional voting discrimination, which is very difficult to do in court. Under the new Section 3 proposal, any violation of the VRA or federal voting rights law—whether intentional or not—can be grounds for a bail-in, which will make it far easier to cover new states. (One major caveat, again, is that court objections to voter ID laws that are not found to be intentionally discriminatory cannot be used as grounds for “bail-in” under Section 3.)

3: The legislation mandates that jurisdictions in all fifty states have to provide notice in the local media and online of any election procedures related to redistricting, changes within 180 days of a federal election and the moving of a polling place. This will make it easier for citizens to identify potentially harmful voting changes in the forty-six states not subject to Sections 4 and 5.

4: The legislation makes it easier to seek a preliminary injunction against a potentially discriminatory voting law. Plaintiffs will now only have to show that the hardship to them outweighs the hardship to the state if a law is blocked in court pending a full trial. There will be a preliminary injunction hearing on North Carolina’s voting law in July 2014, before the full trial takes place July 2015.

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5: The legislation reaffirms that the attorney general can send federal observers to monitor elections in states subject to Section 4 and expands the AG’s authority to send observers to jurisdictions with a history of discriminating against language minority groups, which includes parts of twenty-five states.

The bill is certain to have its critics, including on the left. Voting rights supporters will argue, justifiably, that the new Section 4 formula does not apply to enough states and wrongly treats voter ID laws differently than other discriminatory voting changes. Despite these flaws, the legislation represents a significant improvement over the disastrous post-Shelby status quo, which has seen states like North Carolina and Texas rush to pass or implement blatantly discriminatory voting restrictions after being freed from federal oversight. The legislation strengthens voting rights protections in a number of tangible ways and gives the federal government and voting rights advocates new tools to combat voting discrimination.

The sponsors of the bill have a lot of credibility on this issue. Sensenbrenner, as chairman of the House Judiciary Committee, shepherded through the 2006 reauthorization of the VRA—which passed 390-33 in the House and 98-0 in the Senate. Conyers first entered Congress in 1965, the year of the VRA’s passage, and has served on the House Judiciary Committee ever since. Leahy is chairman of the Senate Judiciary Committee and has recently worked with Sensenbrenner on reforming the NSA.

The problem of contemporary voting discrimination ultimately requires a solution that only Congress can provide. It was Congress, after all, that passed the VRA in 1965 in response to the failure of litigation to stop the mass disenfranchisement of black voters in the South. Yes, yes, I realize that a Congress that can scarcely do more than name a Post Office nowadays is not likely to resurrect the VRA any time soon—especially when so much of the GOP is devoted to erecting new barriers to the ballot box. But now that there’s legislation on the table, members of Congress face a choice: Do you want to make it easier or harder for people to vote? The question, and answer, is really that simple.