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The legislation seeks to revive the VRA’s so-called preclearance process, under which certain changes to voting rules had to get the approval of either the Justice Department or a federal court. The interest in restoring it has only increased as former President Donald Trump’s lies about mass election fraud have ushered in a new wave of state voter restrictions.
“Whichever way congress would go in trying to amend the Voting Rights Act and reestablish some form of preclearance, it’s going to have a Supreme Court where at least some members are going to be extremely skeptical of congressional power in this area,” said Rick Hasen, law professor at University of California, Irvine.
Responding to past Supreme Court decisions
Chief Justice John Roberts’ majority opinion for the 5-4 court said that the data the preclearance formula relied on was outdated. Congress may “draft another formula based on current conditions,” the court said.
“We’re putting it together in a report so that next time there’s a lawsuit, they can’t throw it out on these grounds that the data are old, that we’re basing it on something that is outdated,” a House Administration Committee staff member told CNN. “Because we’ve gone out and collected evidence and testimony — thousands of pages of it.”
The report was the culmination of a dozen-plus hearings the subcommittee held starting in 2019, in addition to a handful of hearings that have also been hosted by the House Judiciary Committee. Now that the House Administration’s report has been released, the Judiciary Committee will have jurisdiction of the John Lewis bill as it advances to the House floor. The latest version of the bill hasn’t been introduced yet, but is expected soon. House Speaker Nancy Pelosi announced Tuesday night that when the House returns later this month, it will “likely” be taking up the legislation.
In a speech about voting rights earlier this summer, Attorney General Merrick Garland promised that the department would “work with Congress to provide all necessary support as it considers federal legislation to protect voting rights.”
Congress held several hearings and compiled a voluminous record during its 2006 reauthorization of the VRA. That still wasn’t enough to convince the Supreme Court, in Shelby County, to leave the law undisturbed. However, at the time, and despite the warnings of election law professors, Congress didn’t adjust the preclearance formula itself, which singled out states and jurisdictions based on voter registration data from the 1960s and 1970s, among other factors.
“The Supreme Court clearly was looking for a dynamic kind of policy that was responding to what was happening in the world,” said Sean Morales-Doyle, the acting director of the Democracy Program at the liberal-leaning Brennan Center, which is one of the voting rights organizations working with lawmakers on the bill.
A legislative crucible meets a legal minefield
Whether the carefully crafted rollout will be worth it is another question. First there are the legislative obstacles. Once it passes the Democratic-controlled House, the legislation will go the Senate, where its supporters will either need to win the votes of 10 Republicans or convince Democratic centrists like Manchin to change their mind on the filibuster. Currently, there are negotiations ongoing in the Senate about a compromise package that would combine parts of the John Lewis bill with pieces of the “For the People Act,” a separate Democratic elections bill that includes several voting rights provisions.
Though he balked at the original version of the For The People Act, Manchin has been supportive of the John Lewis bill. But getting the Senate Democratic caucus unified behind a voting rights package won’t solve the filibuster conundrum the legislation faces.
If Democrats achieve the unlikely and put a version of the John Lewis bill on President Joe Biden’s desk, what happens in the court is just as treacherous. There is no doubt that it would face a legal challenge that would likely go to the Supreme Court. In the Shelby County decision, and rulings since then, the conservative justices have shown themselves extremely wary of the need for federal intervention in how states run their elections.
There are currently discussions around inserting in the John Lewis bill language that would address Brnovich, according to activists involved in Congress’ work on the voting rights legislation.
“There are very few avenues that you can challenge discriminatory practices under the Voting Rights Act now,” said Jesselyn McCurdy, the managing director for government affairs at the Leadership Conference on Civil and Human Rights.
As the bill is crafted though, lawmakers will be walking a line between making it effective enough to protect the voters who face discrimination, while still targeted enough to convince a conservative judiciary not to knock it down.
“That political impulse is running against a very conservative court,” said Guy-Uriel E. Charles, an election law professor at Harvard University.
CNN’s Lauren Fox contributed to this report.