John Roberts and the Supreme Court might block anything Democrats do on voting rights

By CNN Newsource

Published August 11, 2021 10:00 AM

By Tierney Sneed, CNN

A key piece of congressional Democrats’ voting rights push faces not only a near-impossible odds of becoming law, but also a daunting court battle in front of a conservative judiciary if it does.

The legislation, known as the “John Lewis Voting Rights Advancement Act,” is now a focus of the House and is expected to be part of the voting rights package negotiated in the Senate to win over West Virginia Democratic Sen. Joe Manchin’s support. The bill would restore a provision of the Voting Rights Act meant to address racial discrimination that was gutted by the Supreme Court in 2013. Doing so has long been a goal of lawmakers, and one that seemed only remotely possible after Democrats obtained narrow control of Congress while winning the White House.

But Democrats have had to move deliberately in how they’ve advanced that aspect of their voting rights push, in the hopes of protecting it from the kinds of Supreme Court cases that have undermined the Voting Rights Act, most recently this summer.

“The bill has to pass constitutional muster,” a House Democratic staffer involved in the process told CNN.

The legislation seeks to revive the VRA’s so-called preclearance process, under which certain changes to voting rules had to get the approval of either the Justice Department or a federal court. The interest in restoring it has only increased as former President Donald Trump’s lies about mass election fraud have ushered in a new wave of state voter restrictions.

Still, legal experts remain skeptical that any amount of procedural legwork by Congress would be enough for the current Supreme Court and its 6-3 conservative-liberal majority.

“Whichever way congress would go in trying to amend the Voting Rights Act and reestablish some form of preclearance, it’s going to have a Supreme Court where at least some members are going to be extremely skeptical of congressional power in this area,” said Rick Hasen, law professor at University of California, Irvine.

Responding to past Supreme Court decisions

The John Lewis bill, named after the late Black civil rights activist who then served in the House for more than three decades, is aimed at addressing the Supreme Court decision Shelby County vs. Holder, which dismantled a major part of the 1965 Voting Rights Act. That 5-4 decision invalidated the formula used to determine which states needed federal approval for changes to their voting practices, because of their history of racial discrimination at the ballot box.

Chief Justice John Roberts’ majority opinion for the 5-4 court said that the data the preclearance formula relied on was outdated. Congress may “draft another formula based on current conditions,” the court said.

So, for their current attempt to fix the VRA, Democrats have collected thousands of pages of testimony and documents — summed up in a 128-page report released last week by the House Administration Subcommittee on Elections — that they say shows current racial voting discrimination that justifies the revival of preclearance.

“We’re putting it together in a report so that next time there’s a lawsuit, they can’t throw it out on these grounds that the data are old, that we’re basing it on something that is outdated,” a House Administration Committee staff member told CNN. “Because we’ve gone out and collected evidence and testimony — thousands of pages of it.”

The report was the culmination of a dozen-plus hearings the subcommittee held starting in 2019, in addition to a handful of hearings that have also been hosted by the House Judiciary Committee. Now that the House Administration’s report has been released, the Judiciary Committee will have jurisdiction of the John Lewis bill as it advances to the House floor. The latest version of the bill hasn’t been introduced yet, but is expected soon. House Speaker Nancy Pelosi announced Tuesday night that when the House returns later this month, it will “likely” be taking up the legislation.

A House Judiciary subcommittee will be holding a hearing Monday with US Assistant Attorney General Kristen Clarke, who leads the Justice Department’s civil rights division.

In a speech about voting rights earlier this summer, Attorney General Merrick Garland promised that the department would “work with Congress to provide all necessary support as it considers federal legislation to protect voting rights.”

Congress held several hearings and compiled a voluminous record during its 2006 reauthorization of the VRA. That still wasn’t enough to convince the Supreme Court, in Shelby County, to leave the law undisturbed. However, at the time, and despite the warnings of election law professors, Congress didn’t adjust the preclearance formula itself, which singled out states and jurisdictions based on voter registration data from the 1960s and 1970s, among other factors.

While details of the coming version of the John Lewis bill remain to be seen, an iteration introduced in 2019 showed that the House was tweaking its preclearance approach. Rather than using just geography to determine when election procedures need federal approval, the 2019 bill also adopted a “covered practices” section. Those provisions would subject certain kinds of rules — such as ID requirements or reductions in multilingual voting materials — to preclearance.

“The Supreme Court clearly was looking for a dynamic kind of policy that was responding to what was happening in the world,” said Sean Morales-Doyle, the acting director of the Democracy Program at the liberal-leaning Brennan Center, which is one of the voting rights organizations working with lawmakers on the bill.

A legislative crucible meets a legal minefield

Whether the carefully crafted rollout will be worth it is another question. First there are the legislative obstacles. Once it passes the Democratic-controlled House, the legislation will go the Senate, where its supporters will either need to win the votes of 10 Republicans or convince Democratic centrists like Manchin to change their mind on the filibuster. Currently, there are negotiations ongoing in the Senate about a compromise package that would combine parts of the John Lewis bill with pieces of the “For the People Act,” a separate Democratic elections bill that includes several voting rights provisions.

Though he balked at the original version of the For The People Act, Manchin has been supportive of the John Lewis bill. But getting the Senate Democratic caucus unified behind a voting rights package won’t solve the filibuster conundrum the legislation faces.

If Democrats achieve the unlikely and put a version of the John Lewis bill on President Joe Biden’s desk, what happens in the court is just as treacherous. There is no doubt that it would face a legal challenge that would likely go to the Supreme Court. In the Shelby County decision, and rulings since then, the conservative justices have shown themselves extremely wary of the need for federal intervention in how states run their elections.

Notable signals were the majority opinions that Justice Samuel Alito wrote in a 2018 Texas redistricting case and then in this year’s Brnovich v. Hobbs. Those cases dealt with a VRA provision separate from the preclearance requirement. But the rulings set a high bar for when the federal government can step in to address racial voting discrimination in state election practices.

There are currently discussions around inserting in the John Lewis bill language that would address Brnovich, according to activists involved in Congress’ work on the voting rights legislation.

“There are very few avenues that you can challenge discriminatory practices under the Voting Rights Act now,” said Jesselyn McCurdy, the managing director for government affairs at the Leadership Conference on Civil and Human Rights.

As the bill is crafted though, lawmakers will be walking a line between making it effective enough to protect the voters who face discrimination, while still targeted enough to convince a conservative judiciary not to knock it down.

“That political impulse is running against a very conservative court,” said Guy-Uriel E. Charles, an election law professor at Harvard University.

CNN’s Lauren Fox contributed to this report.

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