Election law roundup, May 14

Manchin gives the ‘all clear’ to voting rights update?

Joe Manchin once again may be exercising his omnipotence for a good cause.

I joke, but the filibuster-defending Democratic senator from West Virginia — who may be the only lawmaker standing athwart a tsunami of legislation sneaking through Congress by a 51-50 party-line vote — remains opposed to S.1, the “For the People Act,” unless it can get at least 60 votes. Requiring support from at least 10 Republicans. 

Not happening.

Instead, Manchin is backing a revision of the Voting Rights Act that would enhance scrutiny of all state-level revisions of voting laws. Generally, those constitutional rights were guarded more closely within the former states of the Confederacy than elsewhere.

Manchin may be turning the argument over voting rights on its head in an admirable way. Laws that are tainted with allegations (including legitimate ones) of voter suppression in some states shouldn’t be waved through in others.

Earlier this week, the Senate Rules Committee deadlocked along partisan lines, 9-9, in a vote to move the For the People Act to the Senate floor. Democrats still can advance the bill, but with no GOP support, and some Democrats planning to amend (read: weaken some of its more odious sections) before they’ll back it, Manchin is right. S.1 is stuck.

Manchin told ABC News he’s talked with several Republicans who’d back a revised, improved version of the John Lewis Voting Rights Advancement Act. The bill, introduced in the 2019 session, would restore the U.S. Department of Justice’s “preclearance” requirement for changes in voting laws, but only in some states.

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States that have violated the right of minority voters several times over the past 25 years would again need preclearance, meaning an opinion from USDOJ that the proposed law wouldn’t violate civil rights. Repeated violations within congressional districts also could trigger a local preclearance requirement.

Getting preclearance was necessary but not sufficient to let a state move forward with a new voting law, say an ID requirement — or, as North Carolina voters know so well, a new set of congressional or legislative maps. You could get preclearance from USDOJ, but a state law still could face a court challenge … and the state could lose. (See: voter ID in N.C.)

The 2013 Shelby County v. Holder decision by the U.S. Supreme Court put the brakes on the preclearance requirement without overturning it. A 5-4 majority said a state law may need preclearance, but the state had to have a recent history of discrimination. The majority said federal officials had been interpreting the Voting Rights Act as if race relations and the treatment of minority voters by elected officials hadn’t changed since the bill became law in 1965. The court rightly rejected that assumption.

Plaintiffs could demand preclearance by claiming a state law would violate the 14th or 15th Amendments to the Constitution — in shorthand from Vox.com, “a plaintiff typically needs to prove that lawmakers acted with racist intent in order to show a violation of these amendments.”

That’s a difficult standard, but not impossible to attain. North Carolina learned as much in 2016, when the 4th U.S. Circuit Court of Appeals struck down parts of an omnibus election bill passed in 2013 that included a photo ID requirement (the ID law’s 2018 successor is still in court).

The money quote from Judge Diana Gribbons Motz’s opinion: “the new provisions target African Americans with almost surgical precision. ...”

That phrase has been repeated with praise or scorn, depending on your perspective.

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In Shelby County, the 5-4 majority did suggest Congress could fix the Voting Rights Act by making sure its provisions treat states equally and “speak[] to current conditions.”

Manchin’s version of the John Lewis Act would do that. It would apply to all U.S. states and territories. Again, from Vox.com, “Manchin’s proposal would forgo this complicated process of determining which states should and should not be subject to preclearance altogether. He would simply require all states to submit new election rules to federal review.”

As Vox and others have suggested, this could be more disruptive than the For the People Act. For one thing, the Manchin bill would be focused. It wouldn’t enact a host of constitutionally questionable and barely enforceable new rules, so if the bill sticks to its knitting, it’s likely to survive a court challenge.

Also, it could push states toward adopting something like best practices when they try to change election laws. A state-based reform that makes it harder to vote would face tougher scrutiny, and not just in the Old South.

It’s also likely to include plenty of figurative land mines, but it’s worth watching — and perhaps supporting, especially if it takes S.1 off the legislative playing field.

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Enjoy your weekend!