NATIONAL ACTION NETWORK ISSUE BRIEF. S.1945 and H.R. 3899

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1 NATIONAL ACTION NETWORK ISSUE BRIEF S.1945 and H.R VOTING RIGHTS AMENDMENT ACT OF 2014

2 THE BILL: S and H.R. 3899: The Voting Rights Act of Summary: to amend the Voting Rights Act of 1965 to revise the criteria for determining which States and political subdivisions are subject to Section 4 of the Act. Introduced: in the Senate by: Senator Patrick Leahy, D, VT and in the House by Rep. Jim Sensenbrenner on January 16, NAN POSITION: We recognize the effort and progress that has gone into creating this piece of legislation. However, we have concerns about some of the provisions in the Bill. We are working with other civil rights organizations and Congress to build on the progress that has been made thus far to ensure that all voters are protected.

3 Summary of the Voting Rights Amendment Act of 2014 Introduced January 16, 2014 A bipartisan bill introduced by Rep. Jim Sensenbrenner, R-WI and Rep. John Conyers, D MI, titled the Voting Rights Amendment Act of 2014 ( VRA Bill ), would update the Voting Rights Act (VRA) of 1964 in the wake of the Supreme Court s controversial Shelby County v. Holder decision, which gutted the vital preclearance portion of the VRA. While this new bill has features that help undo the damage of the Shelby decision, there are still many areas of concern that Congress should address as the bill moves forward. BACKGROUND: In the VRA, Section 5 once froze potentially discriminatory voting changes before they could disenfranchise voters of color, specifically targeting states with the worst records on voting discrimination. Those states were required to obtain federal pre-approval for all changes in their voting practices. The Supreme Court held the Section 5 coverage formula unconstitutional in its June 25, 2013 Shelby decision, thus ending these preclearance requirements unless and until Congress updates the VRA. The former Section 5 preclearance provisions covered most states across the South and Southwest, and in a few jurisdictions in the North, as well as the state of Alaska. The new formula would cover only four states immediately and would omit key states with an egregious history of voting discrimination. POSITIVE ELEMENTS IN THE PROPOSED BILL: The new Section 5 preclearance coverage formula (five VRA violations in 15 years for statewide coverage; three violations in 15 years or one violation and persistent low minority turnout for local coverage) will never expire and could cover more jurisdictions in the future. However, consent decrees and settlements do not count towards VRA violations. We believe that they should, as there have been numerous consent decrees and settlements regarding discriminatory treatment of voters of color, and the new formula puts too much emphasis on going to trial. We believe other improvements to the formula could result in covering omitted states such as North Carolina, South Carolina, Virginia and Florida. It requires the public to be widely notified of voting changes made within 180 days of an election. It enhances the ability of groups to freeze potentially discriminatory voting changes via obtaining a court issued preliminary injunction.

4 The bill would restore the Department of Justice s ability to send federal observers to monitor inside the polls in the new Section 5 jurisdictions. It also would expand the ability of the DOJ to send observers nationwide. The bill makes it easier to add (bail-in) jurisdictions to preclearance coverage through litigation, by removing the requirement to prove that the voting violations were intentional. SERIOUS CONCERNS THAT CONGRESS MUST ADDRES: Most of the above improvements require litigation. Instead of more protections being embedded in the bill, groups are expected to independently take legal action. The new Section 5 formula only looks at recent history and covers only four states immediately. Although there are new mechanisms in the proposed bill to bring more jurisdictions under preclearance through litigation, for now it will likely only cover the following states for preclearance: Texas Mississippi Georgia Louisiana The new formula looks at only the last 15 years when examining any jurisdiction s record of discrimination. Consent decrees, settlements and state court voting rights findings are not counted. A finding that several different practices violate voting rights would count as only one violation if these practices are all challenged in the same lawsuit, thus encouraging an inefficient multiplicity of lawsuits. The formula should be expanded to count consent decrees, settlements, state court judgments and each separate violation. There is a limited carve out of voter ID laws. While other types of discriminatory voting procedures are fully counted towards what determines why a jurisdiction should fall under preclearance, voter ID laws are partially excluded. Saying discriminatory voter ID laws do not count as much as other types of voting discrimination, is arbitrary and political. We are also concerned that these carve outs could be expanded during the debate and amendment process. However, the bill reaffirms that voter ID can be successfully challenged under the Voting Rights Act without the necessity of proving intent.

5 The cosponsors did not agree to a national preclearance mechanism or known practices coverage. This proposal would automatically require preclearance of the most common voting practices found to be discriminatory in places with significant or rapidly growing minority population. But the proposal was rejected by the bill s sponsors, so the only way these practices can be challenged is through litigation. These common practices, or known practices, include: Reducing available non-english voting materials Reducing polling place resources Changes in polling place locations Altering voting district lines in ways that are likely to dilute the power of voters of color.

6 S and H.R Voting Rights Amendments Act of 2014 Section by Section Description Section 2. Violations Triggering Authority Of Court To Retain Jurisdiction -- Provides that a court can bail-in a State or political subdivision based on a discriminatory result by amending Section 3(c) of the Voting Rights Act (VRA) to include violations of Section 2 of the VRA and violations of any Federal voting rights law that prohibits voting discrimination against racial and language minorities. It carves out from the new standard Section 2(a) cases that are based on a photo identification requirement. Section 3. Criteria For Coverage of States and Political Subdivisions -- Sets forth a new nationwide coverage formula that provides that a State or political subdivision will be subject to preclearance under 5 of the VRA as follows: A state can be covered if: (1) it commits 5 voting violations in the most recent 15 year period and (2) at least 1 of the violations is committed by the State itself. A political subdivision within a state can be covered if it commits 3 voting violations in the most recent 15 year period or commits 1 violation in this period and has had persistent and extremely low minority voter turnout. A State or political subdivision will continue to be covered for 10 years starting on January 1 of the year of the most recent voting rights violations in the state or subdivision, unless the State or subdivision obtains a bail-out under Section 4(a). Under the new VRA, a voting rights violation includes (A) a final judgment from a court that the state or subdivision violated the 14th or 15th Amendment to the Constitution; (B) a final judgment of a court that a state or political subdivision violated federal voting laws; (C) a failure or denial of pre-clearance by a court under section 5 or 3 (c) of the VRA; or (D) a failure or denial of pre-clearance by the Attorney General under section 5 or 3(c) of the VRA that is not overturned by a court. The Attorney General s denial cannot, however, be based on the imposition of a photo identification requirement. Persistent, extremely low minority turnout is determined with respect to political subdivisions, comparing the minority turnout rate in the relevant subdivision to other minority and non-minority turnout rates in other subdivisions, the state, and the nation over the most recent 15 years.

7 Section 4. Promoting Transparency to Enforce the Voting Rights Act -- Creates a new Section of the VRA providing for notice and disclosure by States and political subdivisions for three voting-related matters: (i) late breaking voting changes involving federal elections (e.g., changes in voting standards or procedures enacted 180 days before a federal election); (ii) polling resources involving federal elections (e.g., information concerning precincts/polling places, number of voting age and registered voters, voting machines, and poll workers); and (iii) redistricting and other changes in voting districts involving federal, state and local elections. Section 5. Authority To Assign Observers In Certain Political Subdivisions -- Clarifies that the Attorney General has the continuing authority to request Federal Observers in jurisdictions subject to pre-clearance, and authorizes the AG to assign observers with respect to additional jurisdictions where necessary to enforce the language minority provisions of Section 203 of the VRA. Section 6. Injunctive Relief Clarifies that preliminary injunctive relief applies to all provisions of the VRA and specifies that such relief shall be granted if, on balance, the hardship imposed upon the defendant by the relief will be less than the hardship imposed on the plaintiff if the relief were not granted. Courtesy of the Advancement Project January 2014

8 STATE COVERED BEFORE AND AFTER THE SHELBY DECSION

9 STATES THAT HAVE PASSED MORE RESTRICTIVE VOTING LAWS SINCE JUNE 2013

10 STATES CONCIDERING EXPANDING EARLY VOTING, SAME DAY REGISTRATION AND OTHER POSITIVE VOTING REFORMS

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