A Bipartisan Voting Rights Act Is Possible

Conventional wisdom among some liberals, conservatives, and moderates is that a "polarized Congress" will never update the Voting Rights Act. The Voting Rights Act bill introduced today in Congress (summary here, bill text here), however, shows that a bipartisan update is possible.

Last June, the U.S. Supreme Court scaled back part of the Voting Rights Act. The Act required that all or parts of 15 states (many in the South) preclear their changes to election rules with federal officials. The Court ruled that the formula that determined which states had to preclear their changes was unconstitutional because it was based on election data from the 1960s and '70s, and the decision effectively released those 15 states from preclearance.

The new bill responds to the Court's decision by tying preclearance to recent discrimination. For example, the bill would require a state with five or more Voting Rights Act violations in the last 15 years to preclear new election law changes.

While the new bill would require that fewer states preclear changes, the new bill expands nationwide some of the functions served by preclearance.

For example, before the Court's decision, preclearance deterred discrimination in covered states because bad actors knew their voting changes would be reviewed. The new bill attempts to deter bad activity by requiring that states and localities nationwide provide public notice of particular election changes (I discussed this in my Harvard Law Review Forum essay, "Voting Rights Disclosure"). Also, the new bill allows a judge to require that a state violating the Voting Rights Act preclear new election law changes moving forward.

Before the Court's decision, preclearance allowed federal officials to block unfair rules before they were used in actual elections and harmed voters. The new bill attempts to prevent harm to voters nationwide by making it easier for voting rights lawyers to go into court and obtain a preliminary injunction blocking an unfair election rule before it is used in an election.