When the U.S. Supreme Court struck down a key formula in the Voting Rights Act last year, Chief Justice John Roberts had a constructive but not entirely practical suggestion: “Congress may draft another formula based on current conditions." Against all odds, this Congress -- on track to be the least productive in modern history -- actually came up with a new formula. Unfortunately, it could do more harm than good.
The old formula dictated which states and counties were subject to more stringent requirements under the Voting Rights Act, now almost half a century old. The law protects the voting rights of all Americans but -- until the court's decision -- paid special attention to election rules and practices in eight states and parts of seven others, mostly in the South. Because of their history of disenfranchisement, those districts were required to get "preclearance" from the federal government for any changes to election practices, including ID requirements and polling hours.
The court's decision rightly noted that the law's formula for identifying which districts were subject to preclearance was outdated. It captured places (New York City, for example) that long ago demonstrated a commitment to protecting voting rights while failing to cover states (Kansas, Pennsylvania, Ohio, Wisconsin and most of Florida) that lie at the heart of the today’s voting-rights debate.
Yet the new formula proposed by Congress would do more to help lawyers than voters. Under the bill, the subject of a Senate Judiciary Committee hearing this week, five voting rights violations in the past 15 years (at least one committed by state government) would subject a state to preclearance. This would leave many of the states that have stirred voting rights controversies untouched. The bill would also subject localities to preclearance if, over the same 15-year period, they committed just one violation and minority voter turnout was lower than the national or state average for minority or white voters.
Correlating turnout with discrimination is problematic. For instance, a county’s minority turnout could be consistently higher than its white turnout, but if it is consistently lower than the state or national average for either minority or white voters, the county would be in violation of the law. In this scenario, how are a minority's voting rights being violated? And what about majority-minority districts, which are becoming increasingly common? How does this formula, and the 14th Amendment's guarantee of equal protection under the law, affect white voters in those districts?
There is no indication that House Speaker John Boehner is interested in the bipartisan bill the Senate is considering this week, and it is unlikely his party would accept it. Instead of going all in on a bill that stands little chance of passing, its supporters should step back, rethink their approach and broaden their goals.
For instance, Congress could require states with ID laws -- which are ignored by the Senate bill -- to provide, or at least make available, an acceptable ID to voters free of charge. That could be the first amendment in a voters’ bill of rights that would guarantee access to the ballot in all states. The bill of rights could also include a requirement that polling sites for all federal elections remain open for at least 13 hours, which is more than most states currently offer. It could require states to operate sufficient polling places to prevent wait times from exceeding 15 minutes. It could direct states to count all provisional ballots that are cast in the wrong precinct if the voter was eligible to vote for some of the candidates or issues on the ballot.
Every aggrieved group wants its own "bill of rights," of course, and Congress has been all too willing to propose them -- for high school athletes, small-business owners, even cruise ship passengers. But surely if any group deserves a bill of rights, it's voters.
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