Voter ID Protection Act: Here's the Language of HR 3899 Amending the Voting Rights Act

Update: Here's a quote from the official statement (January 2014) of the NAACP's Lorraine C. Miller, Interim President and CEO, NAACP on HR 3899: "The NAACP appreciates that the U.S. Congress has made a bipartisan effort to update the Voting Rights Act, however we have serious concerns about the ability of some provisions in this bill to protect ALL voters from discrimination at the polls.

 

As the nation's oldest and largest grassroots civil rights organization we have the responsibility to ensure that any proposed legislation is in the best interest of our members, our community and our country. Participation in our democracy should be unfettered and all votes should be properly counted. From the exceptions for voter ID laws to decreased preclearance coverage to increased reliance on costly litigation, there are essential revisions and amendments to this bill that must take place to ensure ALL voters have fair and equitable access to the ballot box."

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Translation: Get rid of this voter ID law protection nonsense or kill this stupid, fracking bill.

From the Library of Congress:

H. R. 3899  To amend the Voting Rights Act of 1965 to revise the criteria for determining which States and political subdivisions are subject to section 4 of the Act, and for other purposes.

Here's the problem: GOP-passed state laws designed to obstruct voters are specifically excepted as violations of the Voting Rights Act.

If singed into law H. R. 3899 would be the basis of a decision devastating the arguments of League of United Latin American Citizens of Wisconsin v. Deininger alleging violations of Section 2 of the Voting Rights Act by disenfranchising Latinos and African Americans.

This is of course Sensenbrenner's objective, protecting Voter ID laws across the country from legal challenge. Here's the bill's language regarding photo identification laws:

SEC. 2. VIOLATIONS TRIGGERING AUTHORITY OF COURT TO RETAIN JURISDICTION.

... violations of this Act (other than a violation of section 2(a) which is based on the imposition of a requirement that an individual provide a photo identification as a condition of receiving a ballot for voting in an election for Federal, State, or local office); ...

SEC. 3. CRITERIA FOR COVERAGE OF STATES AND POLITICAL SUBDIVISIONS.

`(3) DETERMINATION OF VOTING RIGHTS VIOLATION- For purposes of paragraph (1), a voting rights violation occurred in a State or political subdivision if any of the following applies: ...

... `(D) The Attorney General has interposed an objection under section 3(c) or section 5 (and the objection has not been overturned by a final judgment of a court or withdrawn by the Attorney General), and thereby prevented a voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting from being enforced anywhere within the State or subdivision, other than an objection which is based on a voting qualification or procedure which consists of the imposition of a requirement that an individual provide a photo identification as a condition of receiving a ballot for voting in an election for Federal, State, or local office. ...

In other words, this so-called Voting Rights Act fix would devastate the legal argument that obstructive Republican Voter ID laws are violations of the Voting Rights Act, and voters are left with GOP justices regard for the 14th and 15th and perhaps the 24th amendments protecting voters against discrimination, an appalling fate in this democracy.

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.

Secret Strategy in Play, or This Is Dumbest Civil Rights Bill in History

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

Update II: The Grio notes Rep. Conyers and Sen. Leahy gave in to the GOP voter obstruction forces, generally exempting "voter ID" laws from federal scrutiny in the Voting Rights Act Amendment. Are pro-civil rights forces in Congress really going to throw in the towel on photo voter ID obstruction, in the name of the Voting Rights Act no less? And if they are not, what are they waiting for in opposing this travesty of democracy through voter ID obstruction, inserted by Rep. Sensenbrenner?

Update: Yes,  Joshua A. Douglas of Slate Magazine, voting is mostly a state right. Hence, the Pocan-Ellison Right to Vote Amendment to correct this defect. But there are these things called the 14th, the 15th and the 24th Amendments that speak to voting clearly. In any event, the proposed Voting Rights Act Amendment that would contain language explicitly protecting GOP-crafted photo identification as a condition of receiving a ballot for voting in an election for Federal, State, or local office is a disgrace.
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Here's one of the latest pieces of foolishness on the newly proposed Voting Rights Act Amendment that still, inexplicably, has not been met with a 'are you kidding me' reaction.

Some other brilliant, well-crafted legislative strategy must be at work as HR 3899 resides at the Judiciary committee.

Kevin Drum discusses Supreme Court Chief Justice John Roberts in a piece as though the good CJ went on an objective, epistemological quest arriving at the honest conclusion that the old coverage formula for federal preclearance in the Voting Rights Act is simply outdated, 1,000s of congressional pages of social scientific evidence aside.

Drum writes that now, "a bipartisan trio of lawmakers introduced legislation that would partially reverse the Supreme Court's handiwork in Shelby County. Basically, it takes up John Roberts' challenge to create a new formula for preclearance that takes into account current conditions. In particular, any state with five or more violations of federal election law over the most recent 15 years would be subject to preclearance. Preclearance would last for ten years from the most recent violation, and states would roll in or out of the preclearance requirements depending on their performance over the preceding 15 years."

Five or more violations of federal election law over the most recent 15 years would be subject to preclearance?

This is the new formula? No heads exploding? Drum notes this legislation not with disgust.

Representative of this conventional wisdom of pretending this bill is worth a damn is Rep. John D. Dingell (D-Michigan), the Dean of the House:

"I commend my friends, Congressman John Conyers and Congressman Jim Sensenbrenner, for working to write a bipartisan bill to amend the Voting Rights Act. Having voted for the 1964 Civil Rights Act and the 1965 Voting Rights Act, I am supremely honored to have worked on this legislation with these civil rights champions, as well as the incomparable Congressman John Lewis and Assistant Democratic Leader Jim Clyburn. I urge the House and Senate to move forward with this bill in order to restore the critical voter protections to minorities, seniors, and students invalidated by the Supreme Court's ill-advised Shelby County decision."

This really is crazy.

The Voting Rights Act Amendment would protect GOP state voter obstruction laws that specifically target minorities, seniors, and students.

While it's true that in 1982, "Congress amended Section 2 to provide that a plaintiff could establish a violation of the Section without having to prove discriminatory purpose," providing dueling sections of the law if passed, the bill's author, Sensenbrenner, in the House openly brags that the act "(i)ncludes modest provisions that continue to permit states to enact reasonable photo identification laws."

This legislation is no first step, it's a con that would stall civil rights challenges and protect GOP state voter obstruction schemes.