The Importance of Tunnel Vision in Fixing the VRA's Coverage Formula

On January 16, 2014, one day after what would have been Dr. Martin Luther King Jr.'s 85th birthday, Representatives John Conyers and Jim Sensenbrenner introduced "The Voting Rights Act Amendment Act of 2014," designed to strengthen and repair the iconic statute. Last summer, in Shelby County v. Holder, the U.S. Supreme Court invalidated the coverage formula of section 4(b) of the Act which, along with section 5, required certain jurisdictions, mostly in the deep South, to preclear with the federal government any changes to their election laws before the changes could go into effect. The Court struck down the formula on the grounds that it did not reflect current conditions surrounding racial discrimination in voting.

The proposed bill establishes a new coverage formula that will affect at least four states -- Georgia, Louisiana, Mississippi, and Texas -- that have violated federal law in the last fifteen years. Unlike its predecessor, this coverage formula is based on more recent voting rights violations rather than decades old registration and turnout data. In addition, the proposed legislation allows new jurisdictions to be bailed in if, among other things, they have violated any federal voting laws three or more times. While there are some aspects of the legislation that may displease civil rights organizations, particularly the exemption of voter identification laws from coverage under the new formula, the proposal is a strong start to address the gaping hole in the preclearance regime created by the Court's decision in Shelby County.

In addition to updating the coverage formula, the bill also strengthens section 3(c) of the Act. Section 3(c) allows a federal court to "bail-in" a jurisdiction into preclearance if it is found guilty of intentional discrimination in violation of the Fourteenth and Fifteenth Amendments. Using this provision, the Department of Justice currently is requesting bail-in for Texas and North Carolina over their restrictive voter identification laws. This month, a federal district court used section 3(c) to bail-in the city of Evergreen, Alabama for intentionally discriminating against minority voters. With the increased use of this provision, it is not surprising that the new VRA bill seeks to broaden the scope of section 3(c) to bail-in discriminating jurisdictions that are exempt from the proposed coverage formula. In addition to constitutional violations, the bill would add ''violations of any Federal voting rights law that prohibits discrimination on the basis of race, color, or membership in a language minority group" as a basis for coverage. Strategically, this proposal is understandable given the limited scope of the new formula. Nonetheless, these proposed changes are alarming because they place a bull's eye squarely on the back of section 3(c) and a related provision of the Voting Rights Act -- Section 2 -- in the process.

As it currently stands, section 3(c) is constitutional because its intentional discrimination requirement is identical to the constitutional standard for establishing violations of the Fourteenth and Fifteenth Amendments. Under Supreme Court precedent, Congress has to amass a record of purposeful discrimination by a state to justify legislation that imposes liability for actions that do not amount to intentional discrimination, a showing that Congress had not made with respect to the coverage formula of section 4(b). It is equally unlikely that there is a record of purposeful discrimination sufficient to justify bailing in a jurisdiction under section 3(c) for any violation of a federal voting rights law, particularly if those actions lack discriminatory intent. Notably, a jurisdiction can violate section 2 of the Voting Rights Act, which prohibits abridgment of the right to vote on the basis of race, without engaging in intentional discrimination. If the Court ultimately requires evidence of purposeful discrimination to justify the proposed changes to section 3(c), the Court also could invalidate section 2 if that provision is used as the basis for bailing in a jurisdiction under section 3(c). In short, the proposed VRA "fix," although badly needed to replace the recently invalidated coverage formula, could have the effect of undermining the rest of the statute if the bill is adopted in its current form. The legislative focus should be limited to replacing the coverage formula and leaving section 3(c) alone.