Progressives were outraged and disappointed earlier this summer when the Supreme Court struck down Section 4 of the Voting Rights Act, all but gutting that vital piece of civil rights legislation.
But two months later, a handful of reformers are wondering if they might be able turn that lemon of a ruling into something closer to lemonade. They point to the fact that the Supreme Court’s decision carried with it a rarely discussed directive to Congress to come up with a new coverage formula that, to quote Chief Justice John Roberts’ opinion, “makes sense in light of current conditions.”
It’s possible, reformers say, that such a directive – especially since it was emphasized by both Justices Clarence Thomas and Roberts, hardly crusaders for civil rights—could be parlayed into even broader reform. As Nathaniel Persily of the Brookings Institution asks in a recent paper on the topic: “should a new VRA continue, as its predecessors, to be focused on the protection of the voting rights of racial minorities or should it expand its scope to more general election or democracy reform?”
Given the current climate on the Hill, the possibility of passing meaningful, much less far-reaching, reform is, of course, unlikely. But nevertheless, optimistic reformers have already begun to identify a few key policy proposals—either new laws or potential amendments to the existing VRA—that might ride the coattails of the Supreme Court’s directive. Here are a few of their ideas.
With Sections 4 and 5 of the VRA out of the picture, the onus has fallen on independent civil rights groups, like the ACLU to file suit on discriminatory practices, like voter ID laws. Reformers say that strategy is expensive, inefficient and unsustainable, and call instead for expanding Section 3 of the VRA, which allows federal courts to require jurisdictions that have violated the Fourteenth or Fifteenth Amendments to get preclearance from the federal government. As Rick Pildes, a professor and voting law expert at NYU School of Law, tells Dylan Matthews at Washington Post’s Wonkblog:
“One could imagine variations of that kind of structure, where coverage is tied to specific findings of violations in particular places over recent periods of time. You could modify, or work to expand, Section 3.”
It may also be conceivable that a robust new law on gerrymandering could extend preclearance protections to all states seeking to impose restrictive voting laws. Such a process would also eliminate the need to constantly update the law in order to ensure it remains constitutional and in line with “current needs,” but it would also be much more difficult to implement.
As it is, protections against gerrymandering are all but non-existent, with the overwhelming effect of acing out large numbers of Democratic voters, and minorities in particular. (There’s a reason the Republicans were all but guaranteed the House in 2012.) Since fixing that problem in the courts has proved mostly fruitless (see: Davis v. Vandemer and its aftermath), reformers have suggested that structural reforms to the election process could take some of the political power out of line-drawing.
One such proposal, advocated by anti-gerrymandering group FairVote, involves using single-member districts with additional accountability seats in state legislatures. While the details get complicated, the idea is to make the outcome of elections align more with the popular vote without actually using the popular vote. States would do this by giving a certain share of seats – “accountability seats” – to ensure the basic distribution of seats is in line with the popular vote. So in a 100-seat legislature, for instance, 80 seats would be determined as they are now. The remaining twenty would be apportioned to ensure that the party that got a majority of votes gets a majority of seats.
As Fairvote.org sums it up: “For example, if a party won 54% of the total vote, but only 39 of the 80 district seats, it would get 15 of the 20 accountability seats to ensure an accurate share of 54 seats.”
Tackling long lines at the voting booth
In areas that are disproportionately black, Hispanic and working class, voters have had to wait up to seven hours longer than their white, Republican counterparts in recent elections. Reformers say any new amendments to the crippled VRA, or any new legislation in general, could start by adding substantial early voting hours: up to four days over two weeks in the run-up to elections and by guaranteeing mail-in options. While a small bill like that would hardly replace Sections 4 and 5 of the VRA, it’d be a great step in the right direction.