Should Congress accept Chief Justice John Roberts’ invitation? Roberts, in his dramatic voting rights ruling last month, said Congress has a duty to update Jim Crow-era civil rights laws for a post-Jim Crow world. In Shelby County v. Holder, the Supreme Court basically found that Congress committed an unforced error by renewing the Voting Rights Act without updating its formula for patrolling discrimination against voters. Now Congress can finish what the court started. As the Senate holds its first hearing in response to Shelby on Wednesday, with the House of Representatives due to hold one on Thursday, there are indications that a precise piece of legislation could pass even this divided Congress. Here are two strong ways to renew the Voting Rights Act. The first thing Congress can do is update the law’s formula for hunting down discrimination. A clear bill can begin by answering the core question in Roberts’ opinion: Is there a better baseline for discrimination than the literacy tests and voter turnout numbers from the 1960s?
An updated formula could use more recent barriers to the ballot, beyond the tests in the original law, and a more sophisticated measure of recent voter turnout. It could assess not only if a majority of voters are turning out — the original metric — but whether hurdles to voting have an unequal effect on certain communities. For example, do changes to voter requirements, or polling access, have a disparate impact on turnout?
This legislative approach has three virtues. It directly addresses the court’s concerns in Shelby. It matches the underlying law. And it appeals to a broad constituency. After all, an unusually large majority of Congress backed reauthorization of the underlying voting rights law in 2006.
A renewal built on Shelby could unite the civil rights advocates and followers of Roberts’ outlook. This “Supreme Court Plan” could easily be called “The Roberts Plan” — and why should Republicans oppose a Roberts update to legislation they backed seven years ago?
Then there is a bolder approach that Congress should also consider.