WASHINGTON — There aren’t too many Republicans loudly demanding that the Supreme Court uphold Section 5 of the Voting Rights Act, the heart of the landmark law that has made it what is considered the most effective piece of civil rights legislation in U.S. history. Many Senate Republicans recently professed ignorance on the issue, while others have indicated that they’d be fine if the court rules it unconstitutional.
But in 2006, when Congress reauthorized the VRA (HR 9) for 25 years, Republican members not only voted for the bill and put out statements reaffirming their support — many of them also voted against amendments that would have fundamentally changed Section 5. The road wasn’t completely smooth, however, with some rank-and-file members putting up a fight.
If 2006 is any lesson, expect some hurdles to be put up if the Supreme Court rules Section 5 unconstitutional and sends it to Congress to fix, especially with a more divided Republican Party and lawmakers who now seem unwilling to stand behind their earlier support.
The Voting Rights Act was first passed in 1965, outlawing discriminatory electoral practices. Section 5 — a key provision in the act— requires certain states and localities that have a history of racial discrimination to receive approval from the Justice Department before changing election procedures. A locality can bail out of this requirement if it can prove there has been no voter discrimination for 10 years.
Congress reauthorized the VRA in (2006) with overwhelming bipartisan backing; the vote was 98-0 in the Senate and 390-33 in the House.
At the time, House Speaker John Boehner (R-Ohio) — who was then the majority leader — praised the VRA as “an effective tool in protecting a right that is fundamental to our democracy.”
But when asked about it recently on “Meet the Press,” he replied, “I think the Voting Rights Act has passed with large majorities in the House and Senate. I think it’s something that has served our country well. But there is argument over a very small section of the Voting Rights Act, and that’s what the court is going to consider.”
Boehner was referring to Section 5. Recently, the provision has stopped Texas from instituting one of the strictest voter ID laws in the nation and forced South Carolina to make changes to its proposed voter ID provision.
Rep. James Sensenbrenner (R-Wis.) is one of Congress’ most outspoken advocates of the Voting Rights Act. In 2006, Sensenbrenner marshaled his GOP colleagues into passing the reauthorization.
“Republicans have always had a track record of supporting civil rights legislation,” he said in an interview with The Huffington Post. “If you look back in the ‘50s and ‘60s, it was Republican support that overcame southern Democrat opposition.”
Sensenbrenner took issue with Boehner’s characterization of Section 5 being a “small section” of the civil rights law.
“It’s an important part of the Voting Rights Act. If it’s struck down and fixable, Congress has the obligation to fix it,” he said.
“For many of us who are familiar with the statute, we know that Section 5 is the main reason why the Voting Rights Act is the most effective civil rights statute we’ve ever passed in this country,” added Julie Fernandes, who helped lead the civil rights community’s push to reauthorize the VRA while at the Leadership Conference on Civil and Human Rights in 2006. She is now a senior policy analyst at the Open Society Foundations.
Boehner’s office did not return a request for additional comment.
Section 5 is what is most at issue before the Supreme Court this term. Observers worry that justices may argue Section 5 is unconstitutional and send it back to Congress to make it easier for states to skirt the requirement or update the formula dictating which areas are subject to preclearance.
In 2006, some members of Congress — especially from those covered by Section 5 — put up a fight when given an opportunity to amend the act.
Democratic and Republican leaders in the House and Senate embraced reauthorization in 2006. But before the vote, then-Speaker J. Dennis Hastert (R-Ill.) and his lieutenants were “surprised,” according to the Washington Post, when they received pushback from some within the GOP caucus who were upset over how quickly things had moved forward with the reauthorization. As a result, the House Rules Committee agreed to allow votes on two Section 5 amendments.
Rep. Lynn Westmoreland’s (R-Ga.) amendment would have made it easier for jurisdictions to bail out of Section 5’s requirements. Instead of the states and localities having to present evidence that they no longer needed federal oversight, Westmoreland wanted the onus to be on the Justice Department to go through the covered jurisdictions and figure out which ones no longer needed preclearance.
“Congress [should] require that the Justice Department determine which states or counties have long records of voter equality,” wrote Westmoreland in a 2006 Washington Post op-ed. “These jurisdictions would then be freed from Section 5 coverage (just as a handful of Virginia jurisdictions have been exempted from coverage that once included all of Virginia).”
A second amendment would have struck more directly at the heart of Section 5. The late Rep. Charles Norwood (R-Ga.) wanted to update the formula that determines which states and localities are covered under the law by basing it on the past three presidential elections: “Any state would be subject to Section 5 if it currently has a discriminatory test in place or voter turnout of less than 50% in any of the three most recent presidential elections,” the amendment read.
Westmoreland’s amendment captured a majority of the Republican caucus; Norwood’s did not. And with enough Democrats voting against them, they were defeated.
Boehner also voted against both amendments, as did conservatives like Reps. Paul Ryan (R-Wis.) and Darrell Issa (R-Calif.). In the end, the majority of GOP House members ended up voting to reauthorize the VRA, despite the fact that the two amendments failed.
In response to Westmoreland’s amendment, Fernandes argued that the staff in the Justice Department dedicated to enforcing Section 5 is relatively small, and shifting the burden to them to assess every jurisdiction and whether it should be covered would have taken it away from its core mission of making sure discrimination does not happen.
“We thought it was appropriate for the burden to be on the jurisdictions to at least make the initial showing, to say, ‘Hey, I want to bail out, and here is my clean record,’” she argued.
Fernandes argued that in Norwood’s case, the representative bought into the fallacy that Section 5 was trying to solve low voter registration and turnout among minority communities.
“The idea was to end the discrimination itself, not just the symptom of it, which was low registration and turnout,” she said.
Sensenbrenner also argued that just because presidential turnout is high doesn’t mean there isn’t discrimination. Also, he said, turnout tends to be greatest in presidential elections — a significant amount of discrimination can happen in less-visible contests, for school board, sheriff, council and other local positions.
And just because turnout was high in the past doesn’t mean there won’t be discrimination moving forward.
“If you use a high-voter-turnout election — of course presidential elections are always the highest turnout elections — to say that we should loosen our vigilance against discrimination, [that] would mean that in subsequent elections, it would be more difficult for minority voters to vote, and consequently [turnout] would be lower. But by that time, the milk is already spilled and the horse is out of the barn,” said Sesenbrenner.
Sensenbrenner said he never considered either of the two amendments a serious threat.
“I knew we would be able to beat them back,” he said, pointing to the fact that they also defeated Rep. Steve King’s (R-Iowa) amendment mandating that ballots be printed in English only.
If the Supreme Court rules Section 5 is unconstitutional and kicks it back to Congress to amend — an outcome Sensenbrenner says he hopes doesn’t happen — those lawmakers who have so far been uneasy in taking a position on the VRA will have to do so. The debate will occur in a polarized environment that includes varying opinions on long lines at the polls, voter ID laws and allegations of fraud.
Still, Sensenbrenner is confident that if the Supreme Court rules that the law needs to be changed, his colleagues will come around when they are presented with evidence showing why it is still so necessary.
“It was one of the trans-Atlantic passenger shipping lines that said, ‘Getting there is half the fun.’ That’s the experience I’ve had with the Voting Rights Act and all of its mutations since I’ve been in Congress,” Sensenbrenner said. “I think by the time the debate is concluded, there will be a very bipartisan consensus that if there is an amendment needed to Section 5 to keep it viable, the votes will be overwhelming.”