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House Panel Urges Action on Post-Shelby Outbreak of Voting Discrimination

August 7, 2021 by Dan McCue
Rep. G. K. Butterfield, D-N.C., chair of the Subcommittee on Elections of the Committee on House Administration. (Screen grab from press conference)

Not only does discrimination in voting still exist, but it has grown steadily worse in the wake of the U.S. Supreme Court’s landmark decision in Shelby County v. Holder, which voided many protections provided by the Voting Rights Act of 1965, a House panel said Friday.

The panel in question was the Subcommittee on Elections of the Committee on House Administration. Its vehicle was the release of “Voting In America: Ensuring Free And Fair Access To The Ballot,” a 128-page compendium of everything the panel says has gone wrong since the Supreme Court acted in 2013.

It also argues that a wealth of evidence demonstrates that the “extraordinary measures once deployed by Voting Rights Act to protect the vote primarily in the Old South remain necessary today, and that the removal of those safeguards unleashed a torrent of voter suppression laws that the Act once succeeded in holding back.

For those who may not remember, Shelby County v. Holder involved a challenge to the constitutionality of two key provisions of the Voting Rights Act.

The first provision required certain states and local governments to obtain federal preclearance before implementing any changes to their voting laws or practices. The second provision spelled out the formula to be used to determine which jurisdictions were subject to the preclearance requirement.

Writing for the 5-4 majority, Chief Justice John Roberts noted that the Act had been successful in “redressing racial discrimination and integrating the voting process,” but he went on to hold that the coverage formula conflicted with the constitutional principles of federalism and “equal sovereignty of the states” because the disparate treatment of the states is “based on 40-year-old facts having no logical relationship to the present day.”

“Regardless of how to look at the record no one can fairly say that it shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the nation,” Roberts said.

The chief justice did say Congress could revise the Act, so long as any new formula it devised accurately represented the current voting rights landscape in the country.

That assurance wasn’t enough to soothe dissenters like the late Justice Ruth Bader Ginsburg, who wrote “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

The Supreme Court further rolled back long standing protections of the Voting Rights Act in July of this year, with its decision in Brnovich v. DNC, a case that dealt with a general provision barring discrimination against minorities in state and local election laws.

The case dealt with two of Arizona’s election policies, one outlawing ballot harvesting and another banning out-of-precinct voting.

A majority on the high court ruled that neither of Arizona’s election policies violated the Voting Rights Act nor had a racially discriminatory purpose.

In a dissent, Justice Elena Kagan wrote, “the majority writes its own set of rules, limiting Section 2 from multiple directions. Wherever it can, the majority gives a cramped reading to broad language.”

House Democrats have tried to get two voting rights reform bills, the For The People Act and the John Lewis Voting Rights Advancement Act, enacted into law in the current Congress, but they’ve thus far been stymied by Republicans in the Senate and the filibuster.

The Subcommittee on Elections hopes its report, compiled after a half dozen hearings on the matter, provides ample proof that the original Voting Rights Act’s protections are still needed.

They also hope it will provide some guidance to the House Judiciary Committee, which is in charge of drafting a revised version of the John Lewis Voting Rights Advancement Act.

Named after the late Georgia Democrat and voting rights icon, the bill is expressly intended to update the formula that determines who should be required to have federal preclearance found under the Voting Rights Act.

“Hopefully we can get it introduced during a pro forma session during the month of August,” Rep. G. K. Butterfield, D-N.C., chair of the committee, told reporters during the virtual launch of the committee’s report.

“If the House does not return during the month of August for other reasons, then I can anticipate reasonably that we may be able to vote on this during the week of Sept. 2, but that is not my decision,” he said.

Rep. Teresa Leger Fernandez, D-N.M. who is also on the subcommittee, said if the reader of the report is a person of color or someone from another disadvantaged community, what they find in it will reflect their experience in a way that white and more affluent voters might not recognize.

“In writing the Constitution, the founders included the Election Clause, giving Congress the authority to pass election laws,” she said. “They were particularly concerned that the states would interfere with the people’s ability to elect their representatives.

“John Adams described Congress as needing to be a miniature, exact portrait of the people at large … and that great care should be taken to effect this … and to prevent unfair, partial and corrupt elections,” she continued. “What are we looking at now? We can’t have an exact portrait of the people if voters, specifically voters of color, are forced to wait long hours in line to vote or have their polling places shut down or are purged from the voting rolls and otherwise erased from the canvas.”

The ranking Republican member of the subcommittee, Rep. Bryan Steil, of Wisconsin, did not participate in the launch of the report and could not immediately be reached for comment.

“Voting in America” casts a spotlight on several key issues when it comes to how voting rights and elections are handled — or rather mishandled — in several U.S. states.

“Each of the chapters… details the evidence gathered by the Subcommittee on each of these practices — clearly demonstrating the findings of the Subcommittee that each warrants a heightened level of scrutiny and attention from Congress to ensure every American has equal, equitable access to the ballot,” the executive summary states.

Among the key findings of the subcommittee are that purging voters from voter rolls can disproportionately flag for removal, mark as inactive, or ultimately remove otherwise eligible minority voters from the rolls. 

“Although voter list maintenance, when conducted correctly, is appropriate and necessary, misconceived, overzealous list maintenance efforts have erroneously sought to remove hundreds of thousands of properly registered voters and, in doing so, disproportionately burden minority voters,” the subcommittee wrote.

It also found Voter ID and documentary proof-of-citizenship requirements, lack of access to multilingual voting materials, police place closures and consolidations, restrictions of mail-in and early voting, and redistricting, all have a disproportionate and disenfranchising impact on minority voters.

All of these things, the subcommittee notes, have been part of the “backlash” in many statehouses to the dramatically increased voter turnout in both the 2018 and 2020 elections, elections that largely favored the Democrats.

“In 2021, our democracy is under attack,” the report says. “According to the Brennan Center for Justice, as of July 14, 2021, lawmakers had introduced more than 400 bills in 49 states to restrict the vote — at least four times the number of restrictive bills introduced just two years prior. 

“To date, at least 18 states have enacted 30 new laws containing provisions that restrict access to voting.” It continues. “June 2021 marked the eighth anniversary of the Shelby County decision. That decision unleashed a torrent of voter suppression bills, many in previously covered jurisdictions, which continues today. Congress has the power — a power the U.S. Supreme Court has called “paramount” for 142 years — and duty to act. 

“As detailed in this report, there is much work to be done,” it concludes.

Rep. Pete Aguilar, D-Calif., who not only is a subcommittee member but is also vice chair of the House Democratic caucus, reflected on the fact the report was being released on the anniversary of President Lyndon Baines Johnson signing the Voting Rights Act of 1965 into law.

Like his fellow subcommittee members, he said he was outraged by the number of state laws passed in just the first seven months of 2021 that will restrict citizens’ right to vote through the deployment of burdensome voter ID laws, restrictions on mail-in ballots, and more frequent voter roll purges.

“This is an assault on democracy,” Aguilar said, adding that the subcommittee’s report “provides ironclad evidence that in order to combat voter suppression, we must pass the For the People Act and the John Lewis Voting Rights Advancement Act. It is in this way that Congress will fulfill its responsibility to ensure all Americans are secure in their fundamental right to vote.”

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