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Can Congress Fix the Voting Rights Act?

The Supreme Court on Tuesday called on Congress to rewrite a portion of the Voting Rights Act that justices said is outdated and unconstitutional, but any legislative effort is likely to run headlong into both pervasive congressional gridlock and some Republicans’ contention that minorities face few obstacles at the polls.

The court’s decision renders part of the law unenforceable unless Congress acts, and supporters of the Voting Rights Act are concerned they will not be able to enact the legislative fixes needed to save it.

This fear is not new. One of the reasons the reauthorization of the VRA was pushed through in 2006 and not later, when it was scheduled to expire in August 2007, was because then- House Judiciary Chairman Jim Sensenbrenner, R-Wis., worried that once he turned over his gavel in the following Congress, the incoming leader would not have the will to renew it.

But in renewing the VRA, Congress also declined to change the formula for states that need preclearance to change their voting laws; it was that formula the Supreme Court struck down Tuesday.

But some Republicans said there is no need for Congress to act.

“It was good news, I think, for the South in that [the court found there was] not sufficient evidence to justify treating them disproportionately than, let’s say, Philadelphia or Boston or Los Angeles or Chicago,” said Sen. Jeff Sessions of Alabama, the former top Republican on the Senate Judiciary Committee.

When pushed on whether he supports preclearance in principle, Sessions said: “Well, I don’t think it should exist in Shelby County. Shelby County has never had a history of denying voters and certainly not now.”

When presented with Sessions’ remarks about the history of voter discrimination in Alabama, Rep. John Lewis, D-Ga., a former civil rights activist, grew visibly upset and rebuffed such a characterization.

“I was born in Alabama. I lived in Alabama, most my young life. … In Alabama, the same year that President Barack Obama was born, white people and black people couldn’t sit together in a bus station or ride together in a taxicab. They had to change that,” Lewis said. “Teachers, college professors, lawyers and doctors, and they were told they could not read or write well enough, and they failed the so-called literacy test, and they were not able to register to vote until after the Voting Rights Act was passed and signed into law on August 6, 1965.”

Lewis continued: “We made progress, yes, but we’re not there yet. It is still needed today in Alabama and throughout the other states in the old confederacy and other parts of our country.”

But Sessions isn’t the only one who appears to disagree with Lewis.

Senate Minority Whip John Cornyn, R-Texas, said he was “honestly ambivalent” about the need for Congress to rewrite the law.

“The truth is, I think the same rules ought to apply to everyone, and under Section 5 they do not,” he said. “Under the old formula, that dated back to 1965, they didn’t take into account the changes in the country, including places like Texas, where now minorities are being elected in greater numbers and minority rights are protected, so it strikes me that we ought to declare victory that Section 5 has worked, that the country has changed dramatically, and now we ought to have a uniform rule for everybody.”

Most Republicans interviewed by CQ Roll Call said they were not yet familiar enough with the Supreme Court’s decision to say whether a new formula is needed or whether preclearance should cease to exist.

Despite some expected resistance, Democrats and at least one House Republican leader have vowed to try to fix the law. Senate Judiciary Chairman Patrick J. Leahy, D-Vt., committed to bringing up legislation in his panel. However, sources say any bill would have an uncertain future in the Senate and a potentially tough path in the House.

Still, House Majority Leader Eric Cantor, R-Va., released a statement Tuesday vowing to work with Lewis and other lawmakers on an updated Voting Rights Act.

“My experience with John Lewis in Selma earlier this year was a profound experience that demonstrated the fortitude it took to advance civil rights and ensure equal protection for all. I’m hopeful Congress will put politics aside, as we did on that trip, and find a responsible path forward that ensures that the sacred obligation of voting in this country remains protected,” Cantor said.

Congressional Black Caucus Chairwoman Marcia L. Fudge, D-Ohio, also committed to working on a bill in a bipartisan way Tuesday, but she did not have specifics on the details of those plans.

She said she hoped Rep. Robert C. Scott, D-Va., would take the mantle from Rep. Melvin Watt, D-N.C., who was the caucus’ point person on the VRA in 2006. Watt has been nominated for an administration post.

“We will work with the coalition … our leadership and we have friends on the Republican side who are very supportive of us as well, so we will probably try to come together on a piece of legislation and introduce it in a bipartisan way,” Fudge said.

She said she hoped the administration would act while Congress tries to sort through legislative options.

Advocates of the law note that since 1982, the vast majority of federal lawsuits in which voter discrimination was substantiated came from states covered by the preclearance formula, according to a 2006 review by Justice Department historian Peyton McCrary and the National Committee on the Voting Rights Act.

Alabama, for example, was home to 192 incidences of discrimination, as determined by Justice Department during that time period. These statistics were brought forward at congressional hearings at the time of reauthorization and cited by the American Civil Liberties Union in its amicus brief to the court on the Shelby County v. Holder case decided Tuesday.

Emma Dumain contributed to this report.

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