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A Bipartisan Voting Rights Act Is Possible

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Conventional wisdom among some liberals, conservatives, and moderates is that a "polarized Congress" will never update the Voting Rights Act. The Voting Rights Act bill introduced today in Congress (summary here, bill text here), however, shows that a bipartisan update is possible.

Last June, the U.S. Supreme Court scaled back part of the Voting Rights Act. The Act required that all or parts of 15 states (many in the South) preclear their changes to election rules with federal officials. The Court ruled that the formula that determined which states had to preclear their changes was unconstitutional because it was based on election data from the 1960s and '70s, and the decision effectively released those 15 states from preclearance.

The new bill responds to the Court's decision by tying preclearance to recent discrimination. For example, the bill would require a state with five or more Voting Rights Act violations in the last 15 years to preclear new election law changes.

While the new bill would require that fewer states preclear changes, the new bill expands nationwide some of the functions served by preclearance.

For example, before the Court's decision, preclearance deterred discrimination in covered states because bad actors knew their voting changes would be reviewed. The new bill attempts to deter bad activity by requiring that states and localities nationwide provide public notice of particular election changes (I discussed this in my Harvard Law Review Forum essay, "Voting Rights Disclosure"). Also, the new bill allows a judge to require that a state violating the Voting Rights Act preclear new election law changes moving forward.

Before the Court's decision, preclearance allowed federal officials to block unfair rules before they were used in actual elections and harmed voters. The new bill attempts to prevent harm to voters nationwide by making it easier for voting rights lawyers to go into court and obtain a preliminary injunction blocking an unfair election rule before it is used in an election.

Despite the naysayers, a bipartisan Voting Rights Act update is possible.

Some dismiss Congress as too polarized to pass a Voting Rights Act. All past renewals of the Voting Rights Act were signed into law by a Republican president, however, including the 2006 renewal.

Others believe that instead of preventing discrimination, an updated Voting Rights Act should explicitly prohibit restrictive state photo ID requirements and other rules that many Republicans favor. This move, however, would only fuel partisan divisions.

No doubt, anti-civil rights ideologues will try to fuel polarization and undermine the Voting Rights Act by framing it as a partisan Democratic effort (which it is not). Despite the fact that Republican opposition to the bill would stimulate minority voter turnout and backlash in the 2014 midterm elections, a few conservative extremists may try to scare Republicans away from supporting the bill by threatening them with labels (e.g., "RINO").

Some liberals may use similar rhetoric from the other side (e.g., "sellout") because the new preclearance coverage formula does not include states like Alabama and treats ID differently than other election changes in certain limited circumstances. These concessions, however, may be necessary to satisfy the states' rights concerns of the Roberts Supreme Court and the political concerns of Republican members of Congress.

I recognize that today was just the first step, and that passage is not guaranteed. I also recognize that the bill is far from perfect.

The bill, however, is an important first step, and it includes measures that are real building blocks for an approach that protects voters. Further, introduction of the bill rebuts the rhetoric of pundits who claimed, without any evidence, that the update was "stalled." It is far from naive or foolhardy to recognize that this Congress could update the Voting Rights Act.

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Spencer Overton is a Professor of Law at The George Washington University Law School and a Senior Fellow at Demos. He is the author of the book Stealing Democracy: The New Politics of Voter Suppression. Follow him on Twitter @SpencerOverton.