After testifying at a Senate Judiciary Committee hearing Wednesday on how Congress might go about rewriting a key part of the 1965 Voting Rights Act to meet the Supreme Court’s requirements, a key Republican lawmaker, Rep. James Sensenbrenner of Wisconsin, told reporters that Congress now has its “last chance” to rewrite the law to meet the high court’s demands.
He said House Speaker John Boehner and House Judiciary Committee Chairman Bob Goodlatte, R-Va. “are concerned about this,” but “we need to get a draft of a rewrite of Section 4 first.”
Last month in a case involving Shelby County, Ala., the Supreme Court struck down a key section of the Voting Rights Act, Section 4, which detailed the formula used to determine which states and other jurisdictions had to seek Justice Department pre-approval or “pre-clearance” for changes in voting procedures. The high court said it was “based on decades-old data and eradicated practices.”
Section 5 of the law, which requires pre-clearance of voting procedures remains in place, but without Section 4 there’s no way to apply Section 5.
As chairman of the House Judiciary Committee in 2006, Sensenbrenner had shepherded the extension of Section 5 to passage.
Sensenbrenner told reporters that a revision of Section 4 has to be one that “we think both will meet the objections of the Supreme Court expressed in the majority opinion in the Shelby County case and also one that will be politically acceptable in both houses” of Congress.
Sen. Charles Grassley, R- Iowa, the senior Republican on the committee, said at the hearing that he wanted to see what proposals Democrats would come up with, but added that "any legislative fix should not threaten common-sense measures to ensure the integrity of voting, such as constitutional voter identification laws." Since many Democrats oppose voter ID laws, Grassley's pre-condition will make it harder to reach an accord.
Sensenbrenner warned that “this is going to be a much more difficult thing to do than the reauthorization in 2006. I feel that we have to take the time to do it right, because if we don’t do it right and the court either strikes it down again, or Congress will not reauthorize it, that will be the last chance we get.”
Asked whether a revised coverage formula could result in parts of the country being covered by the preclearance requirement that weren’t covered by the old formula, the Wisconsin Republican indicated he didn’t want to even begin to discuss that question publicly.
“I really don’t want to go there,” he said, emphasizing again how hard a job Congress will have in writing a new coverage formula. “We’ve got to be very, very careful on this one … It’s got to be done differently than in 2006 because that matrix isn’t going to work anymore.”
He said, “It is going to be difficult, it is going to be messy; people’s blood pressure is going to go up with the arguments, including mine,” but reauthorizing Section 4 and “making it a viable law will prevent slippage and going back to the bad old days.”
Sensenbrenner said Congress needed to act before the 2014 elections.
In his testimony to the Senate Judiciary Committee, Sensenbrenner said Congress must come up with a new coverage formula to target jurisdictions with “recent and egregious” violations of voting rights.
Underscoring Sensenbrenner’s potentially pivotal role in fixing the law, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., lavished praise on the Wisconsin Republican as “courageous” for his role in 2006, and called him “a civil rights icon in his own right.”
Sensenbrenner was seated at the witness table next to civil rights movement pioneer Rep. John Lewis, D-Ga.
“I’m not a civil rights icon,” Sensenbrenner said, calling himself instead “a mechanic” who will “put together legislation that will work”
A House Judiciary Committee panel is set to hold its own hearing on the Voting Rights Act on Thursday. That hearing may give some indication on how far apart the Republican-controlled House and the Democratic-controlled Senate are on this issue.
Goodlatte and others have pointed to the fact that the Supreme Court’s ruling did not in any way curb Section 2 of the Voting Rights Act which prohibits discriminatory voting rules and procedures everywhere in the United States, not just in the sections of the country that had been covered by Section 5’s preclearance requirement.
Last February, Sensenbrenner joined Rep. Steve Chabot, R-Ohio, and four Democratic members of the House Judiciary Committee in filing an amicus brief in the Shelby County case, urging the court to not strike down the pre-clearance requirement.
Among the questions Congress faces if it devises a new formula to replace the now-invalidated Section 4 are: On what voting data would a new formula be based? Would the new formula be written in a geographically-neutral way that did not focus mostly on certain Southern states, as the old formula did? What time limit would Congress place on the formula?
On Tuesday Attorney General Eric Holder told the NAACP convention in Orlando, Fla., that with Section 4 now struck down, Congress has “a rare and historic opportunity” to pass legislation “restoring and even strengthening modern voting protections.”
Holder also told the convention that he had directed his subordinates in the Justice Department “to shift resources to the enforcement of Voting Rights Act provisions that were not affected by the Supreme Court’s ruling, including Section 2 … .”