Thread by @TravisCrumLaw

Want to know what’s in the new John Lewis VRAA but don’t have time to read 65 pages of dense and complicated legislative text? Check out this 🧵!

#VRA #redistricting #SCOTUS #VotingRightsAct

The VRAA is an ambitious bill that would respond to SCOTUS’s decisions in Shelby County and Brnovich. One huge difference between this VRAA and other, post-Shelby County VRAAs is that it amends Section 2, the permanent and nationwide ban on racial discrimination in voting. 2/x

The VRAA clarifies that laws passed with discriminatory purpose, not just discriminatory results, are prohibited under Section 2. To be sure, laws enacted with racist intent violate the 14th and 15th Amendments and some lower courts have interpreted Section 2 accordingly. 3/x

SCOTUS, however, hasn’t rule on that question. Some scholars, like @rickhasen, have questioned whether Section 2 would be interpreted to cover intent claims at today’s textualist Court. 4/x

electionlawblog.org/?p=122840

For the first time, the VRAA disaggregates vote-dilution and vote-denial claims. Let’s start with vote-dilution claims. 5/x

Further responding to the textualist threat, the VRAA codifies SCOTUS’s decision in Gingles v. Thornburg and its “preconditions” for bringing a vote-dilution claim. Plaintiffs need to prove residential segregation and racially polarized voting. 6/x

Interestingly, the VRAA says that minority voters must constitute a majority in a single-member district, which would endorse Justice Kennedy’s plurality decision in Bartlett v. Strickland. 7/x

The VRAA also answers an open question: can coalitions of minority voters (e.g. Black and Hispanic voters) be grouped together to form a district? The VRAA says “yes" which could have interesting consequences in parts of the Southwest and in state and local redistricting. 8/x

Moving beyond the Gingles preconditions, the VRAA embeds the so-called Senate Factors into the legislative text. These are part of a totality of the circumstances test that’s been used since the 1970s and was endorsed in the 1982 VRA’s legislative history, but not its text. 9/x

It’ll be interesting to see how conservative Justices Thomas and Gorsuch, who believe that the current version of Section 2 doesn’t apply to vote-dilution claims, would respond to these revisions. 10/x

Next up is Section 2 vote-dilution claims. Here, the VRAA overturns Brnovich and expressly rejects the factors that SCOTUS identified, such as whether a practice was widespread in 1982. 11/x

Instead, the VRAA adopts a two-part test that was used in certain circuits pre-Brnovich: a disparate impact that is attributable to past discrimination. This rebuke of Brnovich will likely bring the constitutional issues to the fore. 12/x

Here, the VRAA goes beyond the Senate Factors and identifies new ones, such as the use of photo ID laws. The VRAA also rejects “mere invocation” of “voter fraud” as a consideration, which would thus require states to provide some evidence of voter fraud to justify its laws. 13/x

The VRAA answers the so-called “race or party” question: when voting is racially polarized, how does one determine whether race or partisanship motivated the decision. The VRAA says that states can no longer point to partisanship as a justification for a vote-denial law. 14/x

I’ve made a similar point here about the race or party question in vote-denial cases. 15/x

electionlawblog.org/?p=121026

For all Section 2 claims, the VRAA adds protections against retrogression of minority voting strength. This is a self-conscious cross-application of the rule that used to apply in covered jurisdictions under the pre-Shelby County Section 5 preclearance regime. 16/x

This retrogression requirement hasn’t appeared in older versions of the VRAA and it’ll be sure to draw the Court’s attention. A retrogression requirement in Section 2 would be used against states that have rolled back pandemic-era laws that made it easier to vote in 2020. 17/x

Turning now to preclearance, the VRAA responds to Shelby County in multiple ways. First, it revises Section 3(c) to authorize preclearance if a state or county violates Section 2, as opposed to the current version which requires a constitutional violation. 18/x

To be honest, this change alone could be used to (slowly) re-establish preclearance through litigation, though courts have been reluctant to impose preclearance after Shelby County. 19/x

Revising the bail-in provision is a change that’s near-and-dear to my heart: 20/x: yalelawjournal.org/note/the-votin… and electionlawblog.org/?p=102281

Second, the VRAA creates a new coverage formula: a state is covered if, in the past 25 years, (1) 15 or more voting rights violations occurred in a state OR (2) 10 or more voting rights violations occurred and one of those was committed by a state. 21/x

A county is covered if it commits three violations in the same time period. Coverage lasts for ten years. 22/x

For his recent testimony, Peyton McCrary put together a list of covered jurisdictions: Alabama, Florida, Georgia, Louisiana, Mississippi, North and South Carolina, Texas, and Los Angeles, Cook Cnty, Westchester, Cuyahoga Cnty, and Northhampton Cnty. 23/x
docs.house.gov/meetings/JU/JU…

This version of the VRAA clarifies that litigation can produce more than just one voting rights violation. For instance, if a court finds that three districts in a State’s redistricting plan are illegal, that’s three violations, not one. That could change McCrary's list. 24/x

Third, the VRAA endorses practice-based preclearance, a form of quasi-nationwide preclearance that is likely to appeal to Senator Manchin and doesn’t raise the equal-sovereignty concerns of the coverage formula. 25/x

Some practices, like voter ID laws, are covered everywhere. Other practices, like creating at-large seats, are covered only if certain demographic triggers are present. I’ve blogged about practice-based preclearance below. 26/x

electionlawblog.org/?p=103838

Next up are disclosure requirements. The VRAA requires states and localities to publicize certain changes. Various versions of these reforms have long been included in the post-Shelby VRAAs. 27/x

The VRAA also makes it easier to obtain preliminary injunctions in VRA cases by lowering the threshold for plaintiffs and limiting the application of the so-called Purcell principle, which has been invoked by courts to keep election rules in place. 28/x

Relatedly, the VRAA targets what @WilliamBaude calls the “shadow docket” by requiring courts to provide reasoned explanations for their decisions. No more opinion-less decisions from #SCOTUS issued in the dead of night. 29/x

Overall, the newest version of the VRAA goes far beyond prior drafts in amending Section 2 and is a clear rebuke of both Shelby County and Brnovich. Now we shall see if it has any chance of surviving the Senate. 30/30

And you can find the full thread here:
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