The Senate Judiciary Committee held a hearing yesterday regarding S.1945, a bill that would amend the Voting Rights Act in the wake of last year’s Supreme Court decision in Shelby County v. Holder. In that case, the Court held Section Five of the Voting Rights Act unconstitutional, a section that subjected many Southern states to prescreening by the Justice Department on legislation relevant to voting rights.
Michael Carvin, Partner at Jones Day, expressed deep concerns about the Democrat’s proposed “fix.” “The basic problem with any effort to revive Section Five in 2014 is that there is just no need for it, given the fact that Section Two of the voting rights act is a very effective remedy for any form of unconstitutional discrimination.” Iowa Senator Chuck Grassley says that the Supreme Court merely, “struck down a 50 year old formula.”
Carvin believes this is a case of Congressional overreach. “I think it exceeds Congress’ power to enforce under the Fourteenth and Fifteenth Amendments. Ever since Katzenbach the Supreme Court and common sense tells you that Section Five is an extraordinary, unprecedented burden, unknown previously to American law.”
Dr. Abigail Thernstrom with the American Enterprise Institute echoed Carvin saying, “I believe the decision in Shelby County was absolutely right. The statute today needs no updating. Its permanent provisions provide ample protection against electoral discrimination.” Alabama Senator Jeff Sessions said that when the law was first passed, he voted for it because he knew that Section Five was an, “extraordinary remedy that would not have to continue.”
In light of Eric Holder’s recent actions, Carvin says that, “in the arms of this Justice Department, [Section Five] has become a very powerful vehicle for racial preferences and racial gerrymanders, and efforts to even invalidate things that make it more difficult to elect white democrats.
Thernstrom criticizes the section of the bill titled “Determination of Persistent, Extremely Low Minority Turnout,” saying, “It provides that jurisdictions may be brought under coverage [of this law] and deprived of their ordinary rights to govern themselves if any of several statistical measures indicate that minority voters have lower turnout rates than others. . . . It assumes simplistically that if minority participation is low by some measure, it must be the fault of the jurisdiction.”
Carvin went on to provide a helpful context for how the Committee should consider this bill. “The important point for this committee to recognize is not whether voting discrimination continues to exist . . . the question is whether or not Section Two is an effective tool to remedy that discrimination, or whether it needs to be supplemented with section five.”
Three other witnesses at the hearing provided stories illustrating their concerns about the existing state of the law, but only Carvin and Thernstrom provided clear, thorough legal justification for why Section Two directly responds to these concerns.