It’s rare to see something new on the Hill these days. Congress is all but paralyzed, everyone is wary of proposing legislation, and members of Congress have never been known for thinking outside the box. And yet the Voting Rights Amendment Act of 2014 (VRAA)–Cong. James Sensenbrenner’s bipartisan effort to revive Section 5 of the Voting Rights Act, which was effectively eviscerated by the Supreme Court last summer–was introduced earlier this year. And it offers a new paradigm for civil rights enforcement. Today, the Senate Judiciary Committee will open a hearing where activists, legislators, and other interested parties will share ideas about just what sort of Voting Rights Act changes are sorely needed. Whether the VRAA succeeds, or even manages to become law, is anyone’s guess. But provisions of the bill are worth watching closely because they could reproduce some of the magic of the old Section 5. Section 5 used to require certain jurisdictions (mostly states in the Deep South) to ask the federal government’s permission before making a change in the way they ran elections. Until a rule was “precleared,” it could not be implemented. This unusual provision solved the central problem of voting-rights enforcement during the Civil Rights era–keeping up with the increasingly creative strategies recalcitrant localities used to disenfranchise voters. Every time a court deemed one discriminatory practice illegal, local officials would switch to another. Section 5 allowed the Department of Justice to get one step ahead of local officials.
Last year, the Supreme Court destroyed Section 5’s foundations by insisting that the “coverage formula,” which determined which jurisdictions had to preclear their changes, violated the principles of federalism by treating some states differently than others. In an effort to avoid this problem, the proposed VRAA would require all jurisdictions to publicize changes to their voting systems in advance and would make it easier for civil rights groups to stop those changes from taking effect–at least temporarily–when challenging them in court. Many have been disappointed by the fix because it’s not nearly as powerful a weapon as Section 5. But it may make possible the behind-the-scenes bargaining that did much for civil rights enforcement under Section 5.
We tend to focus on the most visible moments in Section’s 5 history, those when the Justice Department forbade jurisdictions from implementing this or that policy. Less noticed, but no less important, were the invisible dimensions of Section 5 enforcement–the behind-the-scenes bargaining that took place before preclearance was granted or denied. The Justice Department would work with local officials and representatives of minority voters to hammer out a solution before a preclearance denial was issued. This process of give-and-take often enabled local officials to figure out a way to do what they wanted to do without unduly burdening minority voters or limiting their participation. It was a chance for local input, for local tailoring, for both sides to learn about each other’s perspectives.