Congressional Democrats take a machete to the Supreme Court's election jurisprudence in new voting rights bill

• Congressional Democrats are taking on the Supreme Court with a new voting rights bill.
• A bill named for John Lewis would undo two big SCOTUS decisions undermining the Voting Rights Act.
• The bill is carefully tailored with a razor-sharp focus on the judiciary.

Congressional Democrats are taking a laser-focused aim at the Supreme Court in their latest major voting rights package.

The House is returning from its recess this week to take up the bipartisan infrastructure bill, the resolution for Democrats' $3.5 trillion budget package, and the John Lewis Voting Rights Advancement Act, a bill to refortify and restore the key civil rights law that bans racial discrimination in voting and redistricting.

The Supreme Court significantly undermined the Voting Rights Act of 1965 in two landmark cases in 2013 and 2021. Those rulings came as federal courts are increasingly making it more difficult for plaintiffs to win emergency election-related petitions and not explaining their decisions in consequential cases.

Read more: These are the 13 best crisis experts politicians call to manage scandals and crush bad press reports

Unlike the sprawling For the People Act, Democrats' flagship voting rights, campaign finance, and ethics reform bill which has dominated most of the voting rights focus on Capitol Hill in 2021, the law named for the late congressman John Lewis is carefully tailored to take on the judiciary.

And unlike past efforts to restore the Voting Rights Act, this legislation will receive a vote in the narrowly Democratic-controlled US Senate after likely passage in the House, but it faces tough odds getting through the upper chamber.

So far just one Republican, Sen. Lisa Murkowski, has publicly come out in support of legislation to restore the Voting Rights Act, with many congressional Republicans arguing the legislation constitutes a massive federal overreach into election administration.

But with the start of a new redistricting cycle and the 2022 midterms on the horizon, congressional Democrats are seizing on the moment to revitalize the "crown jewel" of the civil rights movement.

Not so fast, Justice Alito.

Section 2 of the Voting Rights Act, which is permanent, prohibits policies that "deny or abridge" the right to vote based on race or status in a language minority group, with Congress construing it to cover both intentional discrimination and discriminatory outcomes.

Section 2 has been an essential tool for the Justice Department and civil rights groups to challenge discriminatory voting laws. But the Supreme Court dealt a blow to Section 2 with its decision in Brnovich v. Democratic National Committee this July.

The majority opinion, authored by Justice Samuel Alito, upheld two Arizona voting rules under Section 2 - and, in the process, said that courts should also take into account five new "guideposts," considerations that do not derive from the text of the law and could make it significantly harder for plaintiffs to prove if a policy is racially discriminatory.

The John Lewis bill responds by adding new considerations for courts that could make it easier for plaintiffs to prove Section 2 violations and explicitly ruling out the consideration of the Supreme Court's five "guideposts" in Section 2 lawsuits.

Coloring in the lines.

The Supreme Court ruled in 2019 that partisan gerrymandering can't be litigated in federal court, shifting more of the action in federal lawsuits to racial gerrymandering under the Voting Rights Act, which prohibits districts that dilute minority votes through gerrymandering practices.

The John Lewis bill enshrines judicial precedent and legislative history to strengthen efforts to draw majority-minority districts under the parameters of the Voting Rights Act that better enable racial minorities to elect candidates of their choice.

The bill codifies the three-part test in the Supreme Court case Thornburg v. Gingles, which stipulates that a majority-minority district must be created if minority voters can be drawn into a compact district, the area has racially polarized voting patterns, and a minority group votes in a bloc to elect candidates of their choice.

It further establishes that "coalition districts," where members of multiple racial minority groups together make up a majority (like Black and Latino voters, for example), should satisfy the conditions for a VRA-protected district.

Interestingly, as election law scholar Travis Crum noted, the law also echoes (and doesn't try to reverse) Justice Anthony Kennedy's plurality opinion in Bartlett v. Strickland that districts must have over 50% minority population and cannot include "crossover" voters who are part of the racial majority but vote with the minority to be VRA-protected.

Ask permission, not forgiveness.

The biggest aim of the bill is to restore the preclearance regime under Section 5 of the Voting Rights Act that for decades required several states and dozens of smaller jurisdictions with histories of racial discrimination to clear all new voting and redistricting changes with the federal government.

In 2013, however, the Supreme Court majority struck down the previous formula used to determine who needed to seek preclearance in the landmark Shelby County v. Holder decision, rendering Section 5 unenforceable.

"By any measure, the preclearance regime was enormously effective," Attorney General Merrick Garland recently wrote in the Washington Post. "While it was in place, the Justice Department blocked thousands of discriminatory voting changes."

Chief Justice John Roberts' majority opinion argued that the formula, which covered states with histories of using poll taxes and literacy tests and/or had turnout and registration rates below a certain level in the 1970s, was outdated and violated the principle of equal sovereignty by unfairly treating states differently.

Without preclearance in the eight years since, Garland wrote, "the Justice Department has been unable to stop discriminatory practices before they occur" and has been "left with costly, time-consuming tools that have many of the shortcomings that plagued federal law prior to 1965."

Under the Lewis bill, any state or municipality that violates the 14th Amendment, the 15th Amendment, or the Voting Rights Act (as determined by a court or admitted to by a jurisdiction in a settlement) a certain number of times in 25 years would be required to seek permission from the Justice Department or a federal court to make new voting changes.

It's nearly impossible to develop a perfect metric of voting discrimination, and the outcomes of election lawsuits are no exception.

As Harvard Law School professor Nick Stephanopoulos put it, the jurisdictions that end up covered "might just be home to more litigious plaintiffs, more incompetent defendants, or more receptive courts."

But the new bill's "rolling" coverage formula that adapts with current times, instead of past discrimination, is more likely (while not guaranteed) to withstand federal court scrutiny.

The bill also would make every state seek preclearance for a select set of voting changes - including voter identification laws.

Show your work.

The law adds a new section to the VRA requiring election officials to give ample public notice for election changes like new voting rules, polling place changes, and electoral district boundaries.

The bill also takes aim at two increasingly common trends at the Supreme Court that have drawn criticism from legal scholars: justices issuing consequential emergency rulings on election cases without explaining their reasoning, and the court rejecting emergency petitions solely based on their proximity to the election to avoid confusing voters, known as the "Purcell principle."

In addition to its regular load of cases, the Supreme Court takes up emergency applications on everything from death penalty cases to rule changes for upcoming elections (trying to enjoin a voter ID law from being in effect during the election or extending deadlines for voters to return mail ballots, for example) on the so-called shadow docket.

Courts generally avoiding granting last-minute changes to voting rules may seem like a worthy goal. But some election law scholars, like University of California - Irvine professor Rick Hasen, argue that in practice, courts' overreliance on the Purcell principle has led to misguided decisions that end up confusing and even disenfranchising voters.

The bill adds new requirements for justices to explain their reasoning in emergency cases and undercuts Purcell by instructing courts to give "substantial weight" to the concerns of affected voters and not to consider proximity to the election "a burden to the public interest" when weighing emergency election petitions within a certain window of time.