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June 21, 2013 11:18 AM Voting Rights Silver Linings and Plans B

By Ed Kilgore

At Netroots Nation late yesterday, I attended a panel on voting rights sponsored by the Brennan Center for Justice and chaired by The Nation’s Ari Berman. Panelists included the Brennan Center’s Nicole Austin-Hillery, Loyola law professor Justin Levitt, the NAACP’s Jotaka Eaddy, and California Assemblyman Phil Ting.

Though the discussion initially focused on relatively positive recollections of the War Over Voting in 2012 (which turned out relatively well thanks to the vigilance of voting rights activists and some timely judicial interventions), the panel inevitably turned to what Berman called “the elephant in the room.” He referred to the broadly shared anticipation that the Supreme Court is about to do major violence to the Voting Rights Act of 1965, and particularly its Section 5, which requires Justice Department “preclearance” of changes in election laws or procedures that might dilute minority voting strength in jurisdictions with a past pattern of discrimination.

Levitt suggested that the decision might not be as negative or as sweeping as many fear (like others, he thinks the long delay in release of the decision might be a sign of greater dissension within the Court than was originally expected), and also pushed back against conservative claims that the Court’s decision in the Arizona “proof of citizenship” case last week actually represented a Trojan Horse win for future franchise restrictions.

But Austin-Hillery and Eaddy made it clear that if Section 5 does go down on grounds that make possible a legislative “fix,” voting rights activists intend to hold congressional Republicans’ feet to the fire by demanding a reprise of the bipartisan coalition that extended the VRA, Section 5 included, in 2006 (it passed the House 390-33 and the Senate unanimously). Indeed, there was some sentiment in the room that a “backlash” to adverse developments in the Court on voting rights could give new momentum to the broad interest in voting rights that arose in the last election cycle.

Aside from silver linings, the panelists also discussed Plan B scenarios, mostly involving the more aggressive pursuit of Section 2 of the Voting Rights Act, which can be used to challenge voting law and procedure changes after they are enacted (instead of prior to enactment, as with Section 5). And on another front, the panelists very forcefully challenged the assumption that Obama’s appointment of Ben Ginsberg (of 2000 Florida notoriety) to a new post-2012 voting procedures commission made it a dead letter.

All in all, I found it interesting that this tough-minded group of voting rights activists still believed that elements of the GOP think a less reactionary position on the right to vote is in the party’s long-term interests (they also cited several Republican gubernatorial decisions on felon re-enfranchisement that offered positive hope). But it’s also clear they don’t think anyone should count on it in the very near future.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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