How To Draft Voting Rights Legislation To Defang The ‘Jim Crow 2.0 Justices’ Of The Roberts Court

The Associated Press reports, Democrats craft voting bill with eye on Supreme Court fight:

As congressional Democrats gear up for another bruising legislative push to expand voting rights, much of their attention has quietly focused on a small yet crucial voting bloc with the power to scuttle their plans: the nine Supreme Court justices.

[A]s they look to reinstate key parts of the Voting Rights Act of 1965, a landmark civil rights-era law diminished over the past decade by Supreme Court rulings, they have accepted the reality that any bill they pass probably will wind up in litigation — and ultimately back before the high court.

The task of building a more durable Voting Rights Act got harder when the high court’s conservative majority on July 1 issued its second major ruling in eight years narrowing the law’s once robust power.

“What it feels like is a shifting of the goal posts,” said Damon Hewitt, the president and executive director of the left-leaning Lawyers’ Committee for Civil Rights Under Law.

[Democrats have held a marathon series of low-key “field hearings” to prepare for votes on a second measure, the John Lewis Voting Rights Advancement Act, which could come to the House floor for a vote in September. The bill would allow courts and the Department of Justice to once again police changes to voting rules in places with a history of electoral discrimination against minorities, a practice the Supreme Court put on hold in 2013.

Democrats hope the hearings they have conducted with little fanfare will help build a legislative record that could withstand a court challenge. Senate Majority Leader Chuck Schumer, D-N.Y., said Friday that the process will document what he called “the disgraceful tactics that Republican-led state legislatures are using across the country to keep people from voting.”

[W]hile the specifics of the legislation have not yet been released, it would develop a new formula for determining which states and local governments would be subject to a review process known as “preclearance.” The court blocked the practice in 2013, reasoning that the formula used to determine which places are subjected to it was outdated and unfairly punitive. But the court also ruled that Congress could develop a new formula.

Though laws and rules already in place wouldn’t be subject to a retooled Voting Rights Act, future ones would.

“We want to get our work done, but it has to be data-focused and defensible within the courts,” said Rep. Pete Aguilar, a California Democrat who serves on a committee that has held many of the hearings.

Yet serious questions remain about whether the Supreme Court, which has a new and expanded conservative majority, would still be receptive to a new preclearance formula.

Guys! Why are you playing this losers game with the “Jim Crow 2.0 Justices”? Do not treat this court with legitimacy.  I have given you the best legal advice to this problem that any competent staff attorney in Congress should have already advised you:

Remember that the Supreme Court’s Voting Rights Act decisions are what’s known as a statutory ruling, which is distinct from a constitutional ruling. The court has never ruled the VRA itself to be unconstitutional. Congress must include a provision in both the For The People Act and the John Lewis Voting Rights Advancement Act declaring it to be the intent of Congress to override the Supreme Court’s rulings in Shelby County v. Holder (2013) and Brnovich v. Democratic National Committee (2021).

Congress should also do the same for the campaign finance cases of Buckley v. Valeo (1976) and its progeny, e.g, McConnell v. Federal Election Commission (2003), Citizens United v. Federal Election Commission (2010), and McCutcheon v. Federal Election Commission (2014), under the For The People Act.

The other provision that Congress must include in both the For The People Act and the John Lewis Voting Rights Advancement Act is a provision stripping Article III federal courts of jurisdiction to review the new statutes. As Christopher Sprigman explains, A Constitutional Weapon for Biden to Vanquish Trump’s Army of Judges (excerpt):

[A]s it happens, [there’s] a deeper reform that the Constitution specifically authorizes. Article III of the Constitution gives Congress substantial power to strip federal courts’ jurisdiction: a power that can be employed to rein in politicized courts and even to override judicial decisions, at least when courts are standing in the way of change that a substantial and enduring political coalition wants.

How would jurisdiction-stripping work? Start with the source of Congress’s authority. Article III, section 1 gives Congress complete discretion on whether to create the lower federal courts, a power that Congress has used from the founding to limit lower courts’ jurisdiction. And Article III, section 2, clause 2 explicitly empowers Congress to make “exceptions” to the Supreme Court’s appellate jurisdiction—that is, to pick and choose for approximately 99% of the Supreme Court’s total docket what cases the Court has the power to hear. As I explain in this article, to be published in December in the New York University Law Review, under its Article III authority, Congress can remove the Supreme Court’s appellate jurisdiction over particular cases, or particular issues, largely without constraint. 

Congress also has the power to limit the jurisdiction of state courts to hear federal questions, including constitutional claims. But on a practical level, it would not matter much even if state courts still hear federal constitutional claims. State courts lack both the authority to enjoin federal officials and the practical institutional power to counter a determined federal government. 

The implications of Congress’s Article III power are potentially profound. Congress’s power over courts’ jurisdiction means that it can claim for itself authority to interpret the Constitution in particular cases.

Chief Justice John Roberts, who has spent his entire professional legal career seeking ways to undermine the Voting Rights Act of 1965, would be defanged, powerless to inflict any more damage on voting rights.

The Roberts Court previously rejected all the evidence in the congressional record the last time the VRA was reauthorized in 2006. The Roberts Court rejected the overwhelming vote of Congress. It substituted its own anti-democratic partisan desire to preserve a tyranny of white Republican minority rule in an increasingly diverse America for the views of our elected leaders. Congress can hold all the hearings it wants and develop a bullet-proof evidentiary record, and it simply will not matter a wit to these radical Republican “Jim Crow 2.0 Justices” on the Court.

Congress is wasting time that it does not have. Just do what I outlined above, and you can ensure that the Roberts Court is defanged and powerless. And you can do it now. September is too late. Redistricting has already begun.

Congress must safeguard the fundamental constitutional right to vote from right-wing reactionary judge’s attempts to preserve a tyranny of white Republican minority rule in an increasingly diverse America.

Is the problem, once again, that our Democratic prima donna divas Joe Manchin and Kyrsten Sinema will not agree to do what is necessary by eliminating the Senate filibuster rule for voting rights legislation?

These divas should be reminded that they are not in party leadership (for good reason) and that party discipline requires them to follow their party leadership. Put your foot down.

Politico reports, Top Biden ally pleads with him to scrap filibuster for election reform:

House Majority Whip Jim Clyburn (D-S.C.) told POLITICO Biden “should endorse” the idea of creating a carveout to the legislative filibuster in the Senate for legislation that applies to the Constitution. In effect, the reform would make it possible for Democrats to pass their sweeping elections reform bill and another bill reauthorizing key sections of the 1965 Voting Rights Act with just Democratic support.

It’s a sentiment the congressman says he’s shared with White House counselor Steve Ricchetti and Office of Public Engagement Director Cedric Richmond as well. “I’ve even told that to the vice president,” Clyburn said.

Biden could “pick up the phone and tell [Sen.] Joe Manchin, ‘Hey, we should do a carve out.’” Clyburn said, referring to the centrist West Virginia Democrat who has resisted filibuster reform. “I don’t care whether he does it in a microphone or on the telephone — just do it.”

Clyburn’s comments are the latest attempt by senior Democrats to find a way around Republican opposition to their election reform legislation. Biden himself is set to embark on a more aggressive campaign to try and move public opinion behind those bills. He is headed to Philadelphia on Tuesday to deliver a speech on his administration’s “actions to protect the sacred, constitutional right to vote,” the White House said. His remarks will come days after the president met with the leaders of national civil rights organizations at the White House, who called on Biden to use his voice, influence and power in this moment.

[B]iden himself has so far expressed little desire to change the legislative filibuster to the degree likely needed to pass more of his agenda. Adding to the hurdles are recent Supreme Court rulings that weakened the Justice Department’s ability to sue states for election laws deemed racially discriminatory.

If the two voting rights bills before Congress don’t reach Biden’s desk soon, Clyburn said, “Democrats can kiss the majority goodbye.”

“I can see in a state like Georgia — where people stepped up in January in a way nobody thought they ever would — I can see the disappointment in the voters to the extent that [Sen. Rafael] Warnock would not be back,” he added.

In response to Clyburn’s comments, a White House official noted Biden’s respect and admiration for the congressman and the president’s support for a talking filibuster, which requires a senator or group of senators to physically be on the floor to stall a bill. But Biden has dodged questions about whether he believes filibustered legislation should no longer have to meet a 60-vote threshold to pass.

Anxiety and frustration around the failure to move voting rights legislation are not just building among progressive activists but among civil rights advocates and Democratic lawmakers as well. Democrats who spoke to POLITICO said they believed failure on this front would result not only in electoral losses but would have a tangible impact on the country’s democracy if more Republican-led states pass restrictions on voting access.

“I hope that the president gets a little more aggressive,” said Rep. John Yarmuth (D-Ky.), who could lose his seat if Republicans decide to gerrymander the districts in Kentucky during redistricting. “Obviously they have a very full plate and they’re trying to deal with a lot of things [but] there are many of us who believe that particularly after the Supreme Court decision that we really are at a critical juncture in terms of protecting Democracy.”

Yarmuth added that Democrats have a “deep fear” about “what happens to our democracy period. Not who wins in 2022, what happens to democracy.”

“We have to have a federal legislative fix and we have to figure out politically how we get around the filibuster,” said Rep. Madeleine Dean (D-Pa.), vice-chair of the House Judiciary Committee. In Dean’s home state of Pennsylvania Republican state legislators are now calling for an Arizona-style audit of the 2020 election results.

Dean also said she hopes Biden will endorse a carveout to the filibuster for bills related to election reform.

“I hope the President will do that — as I said I think the filibuster should be removed unless it was actually used for debate that furthers conversation about things,” said Dean. “But I hope the president will lead on this.”

[For] many Democrats on and off the Hill, the entire ballgame is the legislative process.

“If he is serious about voting rights being passed, then he has got to support at least modifying the filibuster,” said Cliff Allbright, co-founder of Black Voters Matter, a group that helped mobilize voters in Georgia and across the southern states in 2020. “If he’s not willing to support that … he just needs to not tweet anymore about voting rights — just shut up.”

There are only two ways Democrats get the voting bills passed, said Rep. Clyburn: Either Manchin finds 10 Republicans to support a revised elections bill and the Lewis bill [never going to happen], or Democrats get rid of the filibuster.

Clyburn said he held a one-on-one meeting with Manchin and their staff around the time that Manchin was crafting changes to Democrats’ election reform bill. Clyburn told him “I’m not asking you to eliminate the filibuster. … But what I’m saying to you is that nobody ought to have the right to filibuster my constitutional rights.”

In the absence of an embrace of filibuster reform, Democrats said they hoped to see more hardball legislative tactics and political arm-twisting by Biden to move the election bills forward.

“This is an existential crisis for democracy and the party that is defending democracy,” said Rep. Jamie Raskin (D-Md.), a member of the House Judiciary Committee.

“When you read Robert Caro’s biography of LBJ, you see how the Voting Rights Act of 1965 would not have passed without his direct personal muscular intervention with particular recalcitrant Democratic senators,” Raskin said. “That is the historical template for getting this thing done. And as a longtime senator, and student of the Senate, I am sure that this analogy is in Joe Biden’s mind.”

No more excuses for these Democratic prima donna diva senators. Get this done, twist their arms till they break.

As Bishop William Barber II says, “And so we ask Sens. Manchin and Sinema: Which side are you on? Are you on the side of democracy and the U.S. Constitution? Or are you on the side of autocracy, dark money and the corporate elite?”

It is the time for choosing.