Congress voted overwhelmingly to extend the Voting Rights Act in 2006 for another 25 years — but the way they did made the Supreme Court's decision on Tuesday to strike down a core part of the law inevitable. When the House passed the bill over the objections of several southern lawmakers, Georgia Rep. Lynn Westmoreland blamed "lingering prejudice toward Southerners." But Westmoreland also made a prediction that came true on Tuesday: "We needed 218 votes in the House. But we'll only need five votes in the Supreme Court. Justice will prevail. The honor of Georgia will be restored." While the honor of Georgia might be up for debate, Westmoreland got his Supreme Court votes. Now supporters of the VRA are the ones who need 218 House votes — and probably 60 in the Senate. What are the chances that will happen?
In 2006, Congress did not update the VRA formula that determined which states, counties, and townships were required to pre-clear any changes to voting laws with the Justice Department. The formula, or Section 4, is what the Supreme Court ruled unconstitutional. If Congress wants the preclearance part, Section 5, to mean anything, it has to make up a new formula. On one hand, it looks like there's are many members of Congress who support the law. Republicans still controlled both chambers of Congress seven years ago, but the law was renewed by a vote of 98 to 0 in the Senate, and by 390 to 33 in the House. Less than half of the lawmakers who voted to extend the VRA are still in Congress. Of those who are, 16 voted against the VRA — 15 of them Republicans — and five more didn't vote.
Reasons the VRA is doomed: The strength of Southerners...
While the final 2006 vote tally was heavily in favor of the VRA, the debate leading up to the vote was intense. Many southerners objected to their region being singled out. Westmoreland and fellow Georgian John Lewis — who was a Freedom Rider in the 1960s — got into a shouting match on the House floor:
But the southerners offered a few amendments to the VRA that Congress could consider today. Westmoreland offered an amendment that would have made it easier for jurisdictions to get out of the preclearance requirement; it failed 302 to 118. Georgia Rep. Charlie Norwood offered an amendment that would have applied pre-clearance to all 50 states. It failed 319 to 96. Iowa Rep. Steve King wanted to end a provision of the law that requires jurisdictions with many non-English speakers to print their ballots in other languages. It failed 288 to 134.
2006 "no" votes among current members, by state
We can also predict some Republican opposition to even these southern Republican ideas. In 2007, Columbia law professor Nathaniel Persily wrote in The Yale Law Review that proposed changes to Section 4 have had problems: "Those seeking to expand coverage struggled to find a formula similar to the existing one that would capture an appropriate group of jurisdictions while passing constitutional muster and not giving rise to concerted political opposition." Voter turnout rates didn't work, and neither did the number of voting rights lawsuits. Worse, they didn't cover states that had made more recent attempts to dilute the minority vote, Ohio and Florida. Going national also poses a problem: "It is one thing to retain coverage of jurisdictions that have lived with the constraints of Section 5 for some time; it is quite another to heap a new and costly administrative scheme onto jurisdictions unaccustomed to needing federal permission for their voting laws."
...and Congress's tendency toward inaction
Congress ignored many warning signs that Section 4 was doomed. After a 2009 Supreme Court decision indicated the justices were skeptical that the formula was still relevant, SCOTUSblog's Tom Goldstein wrote, "The decision unambiguously served notice that the Justices are prepared to invalidate the statute as it stands. Congress is now effectively on the clock… If the statute remains the same by the time the next case arrives, the Court will invalidate the statute." Congress did nothing.
Reasons the VRA has a chance: Republicans want more voters
Bloomberg Businessweek's Joshua Green writes that the Supreme Court's decision might look like a victory for the GOP, but "I suspect it will turn out to be a poisoned chalice." Republicans' current effort to reach out to minorities — immigration reform — will struggle to get through the House. Likewise, Green writes, "The Supreme Court's decision to strike down a central provision of the Voting Rights Act will make it easier for Republicans to hold and expand their power in those mainly Southern states. That will, in turn, make it easier for them to hold the House. But it will also intensify the Southern captivity of the GOP, thereby making it harder for Republicans to broaden their appeal and win back the White House." (Pundits on the right have been relatively quiet in the immediate aftermath.)
In 2006, former GOP vice-presidential candidate Jack Kemp write an op-ed in the New York Sun warning that his fellow Republicans risked becoming the modern "Know Nothing Party." Kemp wrote, "The Party of Lincoln should not allow itself to be captured by regressive forces. Nor should it bog itself down in a debate about which political party is advantaged by ending voter discrimination." Kemp was known for his outreach to minorities, and Rep. Paul Ryan, who considered Kemp was a mentor and who was the last GOP vice-presidential nominee, is now trying to do the same.