Just a few weeks ago, the Supreme Court decided the Shelby County v. Holder case, and ruled in a 5-4 vote that Section 4(b) of the Voting Rights Act of 1965 (VRA) is unconstitutional. Congress enacted the VRA in order to combat discriminatory voting laws. It required certain jurisdictions to receive preclearance from the U.S. Attorney General, or a three-judge panel of the U.S. District Court for the District of Columbia, before enacting changes to voting laws. As a result of the decision, the federal government may no longer use the coverage formula that selected which jurisdictions were subject to the VRA’s Section 5 preclearance enforcement. Critics of the Supreme Court’s decision have attributed much of the progress in minority populations’ voter participation to the VRA, citing Justice Ruth Bader Ginsburg’s dissenting opinion, which states that, "throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."
“From Selma to Shelby County: Working Together to Restore the Protections of the Voting Rights Act,” a hearing by the Senate Judiciary Committee, was less of a debate about how the Supreme Court’s ruling will affect the country, and more of a one-sided affirmation that Congress must act, and do so quickly, in order to prevent potential discriminatory laws from taking force. Most of the panelists spoke as elected officials, and all but one of the panelists agreed with the Supreme Court’s dissent.
The hearing's first panel included Rep. John Lewis (D-Ga.) and Rep. James Sensenbrenner (R-Wis.), while the second panel included Luz Urbaez Weinberg, Commissioner of the City of Aventura, Florida; Michael Carvin, partner at the law firm Jones Day; and Justin Levitt, associate professor at Loyola Law School in Los Angeles.
Chairman Patrick Leahy (D-Vt.) opened the hearing by pointing out that even those who voted to strike down Section 4 of the VRA admitted that discrimination still exists. Leahy also said that Americans, regardless of party, should be totally opposed to suppressing votes. Most of the other members of the Senate Judiciary Committee who asked questions and spoke at the hearing — including Senators Chuck Grassley (R-Iowa), Dick Durban (D-Ill.), Sheldon Whitehouse (D-R.I.), Amy Klobuchar (D-Minn.), Al Franken (D-Minn.), and Ted Cruz (R-Texas) — agreed with the notion suggested by the hearing’s title, that members of Congress must work together to restore the protections of the VRA.
Lewis spoke about the historical progress that his hometown and his district have made since the passing of the VRA in 1965, when just 2% of the African Americans in his majority African American town were registered to vote, to now, when the mayor and most of the town’s council are African American. “The vote is the most powerful, non-violent act that we have,” he said, adding that it is the responsibility of Congress to restore the “the heart and soul” of the VRA's protections.
Sensenbrenner pointed out that President Reagan not only supported the VRA, but had said that “actions speak louder than words” when signing the reauthorization of the act. Rep. Sensenbrenner said that voting is the “crown jewel” of our democratic society, and that the Supreme Court disregarded years of the legislative branch’s work when it struck down such a vital part of the VRA.
On the second panel, Carvin argued that Section 5 is unnecessary because Section 2 is the heart of the VRA, and the source of the act’s success. This section prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups identified in Section 4(f)(2) of the Act, and it applies nationwide. Unlike other provisions of the VRA, Section 2 is permanent and has no expiration date. Mr. Carvin said that Section 2 is just as speedy and effective, or even more effective, than Section 5. He pointed out that prior to the ruling, most states did not have preclearance, and that a number of local or state laws that can lead to housing, employment, or other types of discrimination were not subject to preclearance.
In his reply, Levitt asserted that election laws are different. He said that the protections that the Supreme Court removed were able to stop discrimination before such discrimination could take effect, and that preclearance acted as a deterrent for districts that might have considered discriminatory changes to their voting laws. Klobuchar agreed that litigating a case, now that the Section 5 enforcement is defunct, does not serve as sufficient deterrence.
Weinberg also supported restoring the protections of the VRA, giving her perspective as a local official and as a Republican. Her evaluation of current discriminatory voting laws was that they have become, “sneaky, sophisticated, and smarter.” Levitt addressed the issue of long lines at the voting booths, which prevent people with hourly day jobs from voting, as they simply cannot take four hours off of work to wait in a line if they only have a half-hour or hour-long lunch break. “Starbucks has figured out how to not have seven-hour lines,” Levitt said, suggesting that election officials should figure out the same. Weinberg stressed that the issue of voting rights is non-racial, non-language dependent, and, ultimately, non-partisan. If members of Congress want to restore the protections of the VRA, they will certainly need bipartisan support to do so.