On June 23, 2021, activists gathered outside the Supreme Court in Washington, DC. Drew Angerer/Getty Images.
With a new voting rights bill, the Democrats in Congress are challenging the Supreme Court.
A bill named after John Lewis would reverse two major SCOTUS decisions that undermined the Voting Rights Act.
The bill has been carefully crafted with a sharp focus on the judiciary.
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In their latest major voting rights package, the Congressional Democrats have a laser-focused target for the Supreme Court.
This week, the House will return from recess to discuss the bipartisan infrastructure bill. It is the resolution for Democrats' $3.5 billion budget package. The John Lewis Voting Rights Advancement Act is a bill that refortifies and restores the civil rights law that prohibits racial discrimination when voting and redistricting.
In two important cases, in 2013 and 2021, the Supreme Court severely undermined the Voting Right Act of 1965. These rulings were made as federal courts make it increasingly difficult for plaintiffs in emergency election-related petitions to be won and don't explain their decisions in consequential cases.
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The law named after John Lewis, a former congressman, is specifically tailored to challenge the judiciary, unlike the sprawling For the People Act.
And unlike past efforts to restore the Voting Rights Act, this legislation will receive a vote in the narrowly Democratic-controlled US Senate after likely passage in the House, but it faces tough odds getting through the upper chamber.
Only one Republican, Senator Lisa Murkowski has publicly supported legislation to restore the Voting rights Act. Many congressional Republicans argue that the legislation is a huge federal overreach into the election administration.
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With the 2022 midterm elections and the beginning of a new redistricting process, congressional Democrats see an opportunity to revive the "crown jewel," of civil rights movements.
An inscription reading "Voting rights are sacred" was posted near a rally at the Supreme Court in Washington on Wednesday, June 9, 2021 to support Andrew Harnik/AP's upcoming election bill.
Justice Alito, not so fast.
Section 2 of The Voting Rights Act is permanent and prohibits policies that "deny" or abridge the right to vote on the basis of race or status within a language group. Congress has interpreted it to include both intentional discrimination as well as discriminatory outcomes.
Section 2 was an important tool for civil rights groups and the Justice Department to challenge discriminatory voting laws. The Supreme Court struck down Section 2 in Brnovich, v. Democratic National Committee in July.
Justice Thomas Alito authored the majority opinion. It upheld two Arizona voting regulations under Section 2. Courts should also consider five new "guideposts" considerations. These are not derived from the law and can make it much more difficult for plaintiffs to prove that a policy is discriminatory racially.
John Lewis' bill addresses this by providing new considerations to courts that could make Section 2 violations easier to prove and explicitly excluding the Supreme Court's five "guideposts".
Demonstrators gather with cut-outs from congressional districts to demonstrate in front of the Supreme Court before oral arguments in Benisek V. Lamone. This redistricting case concerns whether Democratic legislators in Maryland illegally drew a congressional District in a manner that would prevent a Republican candidate winning. Washington, U.S.A., March 28, 2018, REUTERS/Joshua Roberts/File photo
Coloring along the lines
In 2019, the Supreme Court ruled that partisan gerrymandering cannot be litigated in federal courts. This means that federal lawsuits are shifting more to racial and racial litigation under the Voting rights Act. This law prohibits districts from diluting minority votes through gerrymandering.
John Lewis' bill preserves judicial precedent and legislative record to support efforts to draw majority-minority district districts within the Voting Rights Act, which better allows racial minority voters to elect their preferred candidates.
The bill codifies the three-part test set forth in Thornburg (v. Gingles) by the Supreme Court. It states that a majority-minority area must be created if minorities can be drawn into a compact, racially polarized areas, and a minority group votes to elect their preferred candidates.
Further, it establishes that "coalition district" should be a place where multiple racial minorities are represented together. This would include Black and Latino voters.
Travis Crum, an election law scholar, noted that the law also echos Justice Anthony Kennedy's plurality opinion, Bartlett, v. Strickland, which states that districts must contain over 50% of minority voters and cannot include "crossover" votes who are part the racial minority but vote for the minority to be VRA protected.
At a news conference, the late Rep. John Lewis (GA-5), addresses the audience to introduce H.R. 4, Voting Rights Promotion Act, at Capitol Hill in Washington DC on Tuesday, February 26, 2019. Cheriss May/NurPhoto via Getty Images
Ask for permission, not for forgiveness.
The bill's main purpose is to restore Section 5 of the Voting rights Act, which for decades required many states and dozens smaller jurisdictions with racial discrimination histories to be cleared to vote and make redistricting adjustments with the federal government.
2013's Supreme Court majority overturned the old formula that was used to determine who had to apply for preclearance under the Shelby County v. Holder case. Section 5 became unenforceable.
Attorney General Merrick Garland wrote recently in the Washington Post that "By any measure the preclearance system was enormously efficient." "While the preclearance regime was in place, thousands of discriminatory voting decisions were blocked by the Justice Department."
Chief Justice John Roberts said that the majority opinion, which included states with a history of using literacy tests and poll taxes, and/or states that had low turnout and registration rates in the 1970s, was out of date and violated equal sovereignty, unfairly treating different states.
Garland stated that without preclearance, the Justice Department had been "unable to stop discriminatory acts before they occur" in eight years. He also wrote that the Justice Department was "left with expensive, time-consuming tools that have many similarities to federal law prior to 1965."
The Lewis bill would require any state or municipality to request permission from the Justice Department to make new voting changes.
It is almost impossible to find a perfect measure of voting discrimination. This holds true for election lawsuits.
Professor Nick Stephanopoulos, Harvard Law School, stated that the jurisdictions that are ultimately covered "might just simply be home to more litigious Plaintiffs, more incompetent Defense Attorneys, or less receptive Courts."
The new bill's "rolling coverage formula" that adapts to current times instead of discrimination in the past is more likely to stand up to federal court scrutiny (although it is not guaranteed).
The bill would also require every state to seek preclearance in order to vote on a limited number of changes, including voter identification laws.
This file photo, Nov. 2, 2020 shows an American flag waving in front of Capitol Hill's Supreme Court Building in Washington. The Supreme Court ruled that the Trump administration cannot exclude illegal immigrants from the count used to divide up the congressional seats. Patrick Semansky/AP
Show off your work.
The law includes a new section that requires election officials to provide ample notice to the public about election changes such as new voting rules, changes to polling places, and changes to electoral district boundaries.
The bill targets two trends that are becoming increasingly problematic at the Supreme Court, which have been criticized by legal scholars: the Supreme Court issuing emergency rulings in consequential election cases without explaining why they are being issued, and the court rejecting emergency requests solely on the proximity of the election to avoid confusing voters. This is known as the "Purcell principle."
The Supreme Court is also responsible for hearing emergency cases involving everything, from death penalty cases to rule change for upcoming elections. For example, the Supreme Court may try to stop a voter ID law being in force during an election, or extend deadlines for returning mail ballots to voters on the so-called Shadow Docket.
It may seem like a noble goal for courts to avoid granting changes last minute to voting rules. However, some election law experts, such as Rick Hasen from the University of California- Irvine, claim that courts' excessive reliance on the Purcell principle has resulted in misguided decisions that confuse and even disenfranchised voters.
The bill creates new requirements for justices in emergency cases to explain their reasoning and undermines Purcell by directing courts to give "substantial Weight" to voters' concerns and not consider proximity to elections "a burden to public interest" when weighing emergency petitions.
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