I had a chance to watch a good part of the Senate Judiciary Committee hearing today. It makes me more pessimistic about the chances of a deal to improve the Voting Rights Act after the Supreme Court effectively gutted section 5 in the Shelby County case. Back in February I organized a Reuters Opinion symposium on what Congress could do if the Supreme Court struck down section 5. My thinking was that such a decision would be controversial and Republicans might jump at the chance to fix the Act to improve their position with minority voters. (It’s a point I reaffirmed in this NY Times oped.) Symposium participants offered good ideas for improvements, and after the decision Rick Pildes had an important post on increasing the use of “bail in” as another alternative. I noted in the Reuters piece that I did not expect a new coverage formula to emerge, and one question would be whether a VRA fix would look more like a race-based remedy or more like an election administration (“We’ve got to fix that”) remedy. Today’s hearing showed how far apart Democrats and Republicans are. The Democrats seemed to be grandstanding (as when Sen. Durbin attacked ALEC) or living in a different universe (as when Sen. Klobuchar asked questions about same day voter registration). Sen. Whitehouse talked about voter fraud as a non-existent problem. These are not the ways to get at a bipartisan compromise on new VRA legislation.
Republicans in contrast, were mostly absent from the hearing. Sen. Sessions, who questioned me (and others) so intently in 2006 when the VRA was up for renewal, was absent today. Only Sens. Grassley and Cruz asked questions. Sen. Grassley made it clear that any new legislation should not regulate voter id. The Republicans’ main witness, Mike Carvin, pushed the idea that Section 2 of the VRA is enough to protect minority voting rights, an idea that Sen. Cruz also pushed.
Let’s be clear. Section 2 is no substitute for section 5. It has virtually no teeth these days outside of the redistricting area (and most areas that require redistricting under section 2 already have been). It has not been used successfully go to after voter id, and it would be hard to use it (given the statutory standard) to go after problems with voter registration and long lines (an issue Carvin said had nothing to do with racial discrimination or section 5.)