In Sen. Joe Manchin’s (D-WV) recent memo, where he stakes out his policy positions on voting rights legislation, his alterations to the John Lewis Voting Rights Act were overshadowed by the pages of notes on S.1, the For the People Act.
But as experts told TPM, his proposed changes to the Act — which he favors over S.1 — would gut the bill, significantly watering down its ability to achieve its primary goal: to identify areas of the country with histories of racially discriminatory voting practices and force them to obtain Justice Department or a federal court’s approval before changing their voting practices. His neutering of the bill would have profound implications, given Republican state legislatures’ evidenced eagerness to make it as hard as possible to vote after their losses in 2020.
Those potential harms have been lost in the discussion, partly because S.1 is more politically topical: Senate Majority Leader Chuck Schumer (D-NY) plans to bring the bill to the floor next week, and until the memo dropped, it seemed certain that Manchin wouldn’t support it. The memo nudged open a door to compromise, which optimistic Democrats hope is the first step to pushing Manchin to support the filibuster reform necessary to actually pass the bill.
Manchin only wrote about a half page of bullet points on the John Lewis Act, the legislation meant to restore a critical part of the Voting Rights Act that the Supreme Court killed in 2013. Manchin has expressed previously that he supports the John Lewis Act in lieu of S.1, though the two bills do drastically different things.
‘That’s A Killer’
The Voting Rights Act once included a formula that determined which states and localities had histories of discrimination in voting, and accordingly had to obtain permission — “preclearance” — from the federal government before changing their voting laws and practices. The Supreme Court majority declared that formula unconstitutional, saying it was based on supposedly outdated data that didn’t take into account the strides America has made towards racial equality. The ruling left in place the section requiring states and localities to obtain the preclearance, but until Congress passes a new formula to identify those areas, it’s toothless.
The John Lewis Act, among other things, proposes that new formula. House Speaker Nancy Pelosi (D-CA) has said that the legislation won’t be ready until the fall — various committees are collecting data and plan to hold hearings, establishing a record to bulwark the bill’s constitutionality as much as possible, as the legislation, if passed, would inevitably be challenged in court.
But Manchin’s changes, almost all erring on the side of concern that the measure overreaches, would defang many of the tools the bill provides to identify discriminatory voting practices and force those localities to obtain preclearance. His office did not respond to TPM’s request for comment.
One of those proposed changes would decrease the attorney general’s ability to deem a voting practice discriminatory without a judicial finding.
“Part of the genius of preclearance is that you don’t need judicial finding, the laborious process of going through the courts to determine if something is discriminatory,” Bill Yeomans, a lecturer at Columbia law school who previously worked in the civil rights division the Justice Department, told TPM. “That’s a killer, it just undermines the whole process.”
Another of Manchin’s proposed changes would remove part of the bill that allows a consent decree to be considered a VRA violation. A consent decree is basically a settlement between parties enshrined in a court order — if a party breaks that agreement, they could be found in contempt of court.
A good example of a consent decree at work began in 1982. Democrats accused the Republican National Committee of violating the Voting Rights Act with allegedly discriminatory election tactics, including allegedly sending off-duty armed police officers to patrol polling places in minority neighborhoods.
The RNC opted to settle rather than going into court, and the parties entered into a consent decree, legally barring the RNC from engaging in those practices again (incidentally and to the chagrin of voting rights activists, a judge allowed that particular consent decree to expire in 2018).
Manchin wrote that he wanted to take consent decrees off the table, to prevent the risk of “savvy lawyers” going into cash-strapped localities that don’t have the money to fight off lawsuits and forcing them into a consent decree, thereby admitting their violation of the VRA and being bound by preclearance.
“As if we horrible civil rights lawyers have the unlimited resources to go roaming the country, filing rogue lawsuits,” Yeomans scoffed. He pointed out that only the DOJ and best-funded civil rights organizations have the money to go all the way to trial, but that Manchin’s proposal would seriously disincentivize settling with a consent decree.
In another passage, Manchin calls for vague “objective measures” for determining whether an area has a history of discriminatory practices.
But At Least He’s Talking About It!
In voting rights, the devil is in the details — details that Manchin hasn’t appeared to have grappled with for most of his time in Congress.
“He doesn’t have a background in racial justice from a voting rights place,” Jon Greenbaum, chief counsel at the Lawyers’ Committee for Civil Rights under Law, told TPM. “He’s not a senator who, until now, invested a lot of time in these issues.”
But still, even experts sharply critical of his proposed changes express the same sentiment: relief that he’s at least engaging with the content of the legislation.
“He’s finally being goaded into putting out some policies, and I take that as real progress,” Yeomans said. “In the past, his fallback was that unless it’s bipartisan, he’s not gonna touch it — we were completely stymied before this.”