A scheme under consideration in Virginia to rig the Electoral College in Republicans’ favor could well violate a key provision of the Voting Rights Act, experts on the law say. But that very provision is itself under challenge by the GOP, and could be struck down by the Supreme Court later this year. A Republican bill that would allocate Virginia’s electoral votes based on the popular vote in each congressional district cleared its first hurdle in the state legislature Wednesday. Had the bill been in effect in the last election, Mitt Romney would have won 9 of Virginia’s 13 electoral votes, despite losing the popular vote in the state to President Obama by nearly 5 percentage points. Republicans have raised versions of the idea in several other blue states where they currently have state-level control, including Wisconsin, Ohio, Michigan, and Pennsylvania. If all four states approved the plan, future GOP presidential candidates would get a major—and anti-democratic—leg up.
But in Virginia, where the plan has advanced the furthest, several voting-rights experts told MSNBC.com it could be on shaky legal ground. Section 5 of the 1965 Voting Rights Act requires certain states, including Virginia, to clear any voting changes with the U.S. Justice Department. If the Feds find that the change would have a “retrogressive effect” on minority voters, they can block it.
“Does this change make African-American voters worse off than they were before?” asked Daniel Tokaji, a prominent election-law scholar and a professor at Moritz College of Law at Ohio State University, laying out what he said was the key legal question at issue. “It’s hard to argue it doesn’t.”
“I think there’s a very strong argument to be made that this change has a retrogressive effect on African-American voters in particular and perhaps Latino voters as well,” Tokaji reiterated, adding that the issue had been a subject of online discussion among election-law experts in recent days.
Brenda Wright, a top lawyer at Demos and an expert on voting rights, agreed. “I think there would be strong arguments” that the change harmed minority voters, she said.