Voting Rights Act: Can Congress Come Up With a "New Formula" to Protect Voters?


As expected, this Thursday the Supreme Court sent back two voting law cases blocking voter identification laws and redistricting changes to lower courts in Texas. These decisions were the much anticipated follow-up to the Court's Tuesday decision that struck out a major section of the 1965 Voting Rights Act.  

These recently returned Texas voting cases (Texas vs. United States, U.S. Supreme Court, No 12-496 and Texas vs Holder, U.S. Supreme Court, 12-1028) were initially put on hold as the Court was set to review the Voting Rights Act, and critics are quick to find these decisions to eliminate the "preclearance" provision for approval of state voting changes as the first of many setbacks for voting rights of American minorities. 

However, as these decisions come down this week, critics would do well to focus more closely on a more subtle element of these decisions: that is, the earnest debate between the justices not only on the merits of federal oversight over voting procedures, but instead on the need for a "new formula" to account for changing conditions in American society. 

In the majority ruling of Tuesday's related decision, Chief Justice Roberts claimed the 1965 act imposes burdens on states and local jurisdictions that are outdated, pointing out that only 7% of eligible African American voters registered in Mississippi in 1965, while the number rose to 76% in 2004 without any coverage changes put forward in Congress.

"Congress based its coverage formula on that distinction. Today, the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were," Roberts claimed. 

The decision then left open the option, in theory, for Congress to design a "new and modernized coverage formula" to account for such changes. 

The question remains: How politically feasible is it for Congress to pass a "new formula" to protect minorities in practice, and what would this "modernized formula" look like in a state like Texas? 

As Texas' own demographic makeup is undergoing changes, with a major boom in its Hispanic population, there remains valid fear that recent changes in light of these decisions could have major implications for voting outcomes in a state like Texas. Some cite that as many as 304,000 Hispanic registered voters might be affected by an ID requirement. Justice Department statistics have found that Hispanic voters could be as much as 120% less likely to hold an ID. The potential, then, for a serious "new formula" that can protect minorities should be more seriously and carefully considered moving forward from these decisions. 

Attorney General Eric Holder expressed some optimism for new coverage changes, claiming, "I am hopeful that new protections can and will pass this session of Congress," saying, "This is not a partisan issue, it's an American issue."

The fear remains, however, that Congress will be politically incapable of protecting minorities in a followup in what Yale Law professor Heather Gerken labels a political "nonstarter." And, even if some compromise was eventually reached, there would undoubtedly be a delay in protecting citizens, as well as a "moving target" problem where demographic and social issues will always remain in flux over time.

Justice Ginsburg was quick to point out in her dissent on Tuesday that Congress indeed held numerous hearings in 2006 to reconsider the existing coverage formula without encountering any significant changes, adding to skepticism the Congress is poised to create a fair "new formula" today.

Unfortunately, any "new formula" will no doubt be played out in the political ring with more of an eye for 2016 than for protecting the rights of minorities. Today's notoriously gridlocked Congress would of course face giant roadblocks to any maneuvers that could have major implications for party aspirations in contentious districts across the country. However, if any potential does remain for protections for minority voters to be fairly recalibrated, instead of eliminated, this potential should be given more serious political weight. Focusing on the "new formula" will be the best way to move forward, rather than backward, in light of recent court decisions that will have far-reaching impact for American voters in Texas and across the nation.