National Journal: Voting Rights 'Fix' Will Pass Congress; Why It Should Be Vetoed

Updated - The exemption for voter ID laws was written to win the support of House Majority Leader Eric Cantor and other Republicans. 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 cannot be used as grounds for “bail-in”under Section 3.) - Sharon McClosky in The Progressive Pulse.

The National Journal's Jack Fitzpatrick has a piece that argues convincingly that the so-called fix to the Voting Rights Act of 1965 (and its subsequent reauthorizations) will pass Congress in the wake of its evisceration by GOP justices on the U.S. Supreme Court last year in Shelby County v. Holder.

Major civil rights groups are on board, notes Fitzpatrick, and voter obstruction operative Hans von Spakovsky offers qualified support. The North Carolina NAACP dissents.

And no wonder, the Voting Rights Act contains language protecting the main voter obstruction weapon of the Republican Party, restrictive voter ID laws.

The Voting Rights Amendment (VRA) Act (HR 3899), introduced by Rep. James Sensenbrenner (R-Wisconsin) and Rep. John Conyers (D-Michigan) specifically in Sensenbrenner's words "includes strong, nationwide anti-discrimination protections and continues to permit states to enact reasonable voter-ID laws. Therefore, it prevents racial-discrimination and gives states the ability to address voter fraud."

That there is virtually no in-person voter fraud is of no consequence to the Republican Party.

How does the U.S. DoJ file a Section 3 lawsuit of the Voting Rights Act when language in the fix protects obstructive voter ID laws? And what good is a new Section 4 when voter obstruction statutes are specifically protected?

No legislator in Congress has addressed this question.

"The deletion of voter ID laws from the list of discriminatory violations is a steep price to pay for [GOP] support," reads a NYT editorial.

Not steep, devastating. Not a poison pill, a nuclear bomb aimed at voting rights protection.

The legislation comes as an order and opinion from a challenge to Wisconsin's voter ID law in federal court is anticipated in the coming weeks; and civil rights activists are optimistic that an injunction and a favorable opinion may set a precedent, as well as a favorable opinion from the Court of Appeals for the Seventh Circuit. [The two cases are Frank v. Walker, (Case 11cv1128) andLeague of United Latin American Citizens of Wisconsin v. Deininger (Case 2:12-cv-00185).]

Suppose voting rights advocates do get a favorable opinion from the Seventh Circuit, the Ninth Circuit (Nevada) and the Fourth Circuit (which includes North Carolina and Virginia), does anyone feel as optimistic that a voting rights lawsuit facing the new, proposed plain language protecting states' voter obstruction laws can survive a U.S. Supreme Court with five GOP justices?

Here again is what Sensenbrenner had to say about Texas's voter ID law in August last year: "I regret that the Department of Justice announced its intent to file a lawsuit against Texas’ Voter ID law citing Section 2 to the Voting Rights Act.  The Texas legislature passed Voter ID, and Governor Perry signed this legislation into law in 2011. Voter ID laws are an essential element in protecting the integrity of our electoral process and do not have a discriminatory intent or effect."

This Voter ID law is reasonable?

Voting rights lawsuits appeal to the Fourteenth and Twenty-fourth Amendments, but this Court is not so hot or consistent in protecting rights expansively under these Constitutional protections.

The DoJ has also used Section 3 of the Voting Rights Act against intentional obstruction efforts as in Texas.

(Section 3) is functionally similar to the system the court struck down last month, but Section 3 has several distinguishing features. It does not contain a preset list of jurisdictions, and it is forward-looking: instead of relying primarily on historical evidence of discrimination, it allows individual voters or the government to ask courts to zero in on any jurisdiction, like Texas, that continues to try to impose racially discriminatory voting laws. (NYT. July 28, 2013)

But again Section 3 will be rendered almost useless with the new language protecting Voter ID laws that any honest assessment concludes is intentional discrimination. Absent an explanation, I have no trust in what this fix will do to stop voter obstruction.

We noted here last November that in 2005-06, Sensenbrenner was chair of the House Judiciary Committee so he likes to preen that he was the champion of the renewal of the various sections of the Voting Rights Act that passed 390-33 in the House and 98-0 in the Senate and, history should remember, was signed into law by President George W. Bush.

In fact, Bush did one hell of a job of conjuring LBJ in the White House, and as noted by Gary May and Joseph Morgan Kousser cajoled Congress into passing a 25-year reauthorization in the Republican-controlled Congress.

Writes May:

(D)uring his second term Bush found it necessary to court black voters. The president's slow response to the devastation caused by Hurricane Katrina, which hurt blacks disproportionally and revealed again the presence of widespread poverty in the South, damaged Bush's standing. In an attempt to recoup his political fortunes as congressional elections approached in 2006, Bush turned to the black community. On a trip to Memphis visited the Loraine Motel and stood on the balcony where Martin Luther King was assassinated in 1968. He also agreed to address the NAACP's annual convention, which he had ignored for six years. There Bush was received coolly but won a standing ovation when he expressed his support for the Voting Rights Act, urging congress to enact it then, one year before it was due to expire. This was not simply rhetoric. Behind the scenes Bush's staff encouraged Republicans, who now controlled both houses of Congress, to extend the Act. And this time the Republican congressional leadership in both the House and Senate were receptive to such appeals because if you weren't a southerner, there was no political payoff for attacking the now-iconic Voting Right Act. (pp 273-274)

So, House Judiciary Committee Sensenbrenner was going to defy Bush and Rove on the Voting Rights Act reauthorization of 2006?

And Sensenbrenner is now going to declare war on the GOP's war on voting? He's protecting voter obstruction laws.

The so-called Voting Rights Act is going to codify Voter Obstruction state laws, and thus should be vetoed, if passed.