Are Democrats in Congress and their good government allies going to blow it again on voting rights? It sure looks like they could — by portraying the 791-page For the People Act, or H.R. 1, as the only hope to save American democracy from a new wave of Republican voter suppression.
This mammoth bill has little chance of being enacted. But a more pinpointed law, including one restoring a key part of the Voting Rights Act, could make it out of the Senate to guarantee voting rights protections for all in the 2022 and 2024 elections.
In the wake of former president Donald Trump’s relentless false attacks on the integrity of the 2020 elections, Republican lawmakers throughout the country have proposed over 250 bills to make it harder for people to register and vote. Although the sponsors tout these bills as measures to deter fraud or promote voter confidence, the history of similar laws shows that they do neither. Laws requiring people to make copies of their driver’s license to prove their identities when voting absentee, for example, prevent no appreciable amount of fraud because there is not a lot of impersonation voter fraud overall. Nonetheless, some of these state laws are likely to pass, and some will probably survive court challenges, thanks to a Supreme Court that has proved to be less protective of voting rights over time. This means that many of the gains in voting rights in the fall, prompted partly by the coronavirus pandemic, may be rolled back by the next time Americans choose members of the House, the Senate and the White House.
But Congress does have broad powers in the Constitution to set election rules and combat these new efforts at voter suppression. To begin with, Article I, Section 4 gives Congress the power to “make or alter” any state voting rules applicable to presidential elections. Congress also has the power to enforce constitutional amendments that promote voting rights, including the 14th (guaranteeing equal protection), 15th (barring race discrimination in voting), 19th (barring gender discrimination in voting), and 26th (barring age discrimination in voting). That gives it some power over the rules of purely state and local elections as well, as when Congress banned the use of literacy tests in the Voting Rights Act.
That means Congress likely has the power to do many, but not all, of the things H.R. 1 proposes. Some parts of it could well be found unconstitutional if it passed, such as a provision requiring states to re-enfranchise all people convicted of felonies who are not currently serving time in a correctional institution. Courts could potentially find that provision interferes with states’ constitutional right to set qualifications for voters.
But potential unconstitutionality of some provisions is not the main problem with H.R. 1. Instead, the problem is that the bill contains a wish list of progressive proposals that make it unlikely to survive debate in the Senate. In addition to sensible provisions protecting voting rights, the bill also contains controversial rules on campaign financing, including the creation of a public financing program for congressional candidates, new ethics rules for the Supreme Court, and a requirement that most candidates for president and vice president publicly disclose their tax returns.
Not only is H.R. 1 unlikely to survive a filibuster led by Republican senators such as Minority Leader Mitch McConnell (Ky.), who has directed most of his opposition to the campaign finance aspects of H.R. 1; it is not clear it could even get 50 votes from the Senate’s Democrats and their independent allies. That makes it an unlikely vehicle for convincing Democrats to abandon the filibuster requirement for voting rights bills, as I and others have advocated. Why would Democrats such as Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.), who say they want to keep the filibuster in place, vote to abolish it for a bill that might not even have majority support?
A narrower bill targeted at protecting voting rights more directly would appear to have a better chance of passage, by assuring that there are more than 50 senators — including perhaps some moderate Republicans — to support the bill. Such a narrower bill still might require blowing up the filibuster for voting rights reform, but that target seems much more achievable with a pinpointed proposal.
What would be in the new, narrower bill? There are many parts of H.R. 1 and of the John R. Lewis Voting Rights Act that are worth copying or modifying, and at least some of these could attract moderate Republican support.
First, Congress could restore a key provision of the Voting Rights Act. In 2013, the Supreme Court in Shelby County v. Holder killed the preclearance provision in Section 5 of the 1965 law that had required states with a history of discrimination in voting to get federal approval for changes in voting rules before they could make them. These states had to demonstrate that the proposed changes, such as cutbacks in days of early voting, would not make minority voters worse off. The court held in Shelby that the formula for determining which states needed to get advance clearance was outdated because it was not tied to current voting discrimination. Congress could reenact preclearance with a new coverage formula tied to current evidence of discrimination.
Second, Congress could require that states offer ample registration and voting opportunities to voters. For example, lawmakers could require that states offer online registration opportunities; 40 states already do, and when Texas was ordered to do so recently as part of litigation, half a million more people registered to vote. Congress could also require that states offer two weeks of some form of early voting — whether in-person, by mail or both — in all federal elections. It could even require that states offer no-excuse absentee balloting.
Third, Congress could require states to assure election security. Lawmakers could require states only to allow voting for federal elections on machines that produce a piece of paper that can be counted in a recount, assuring that the totals announced by voting machines can be verified by hand. Congress could also require states to have certain procedures in place to protect the integrity of voter registration databases and other pieces of critical election infrastructure. These requirements are important for both to assure that election results reflect the people’s will as well as to promote public confidence.
Finally, Congress could end partisan gerrymandering of congressional districts by requiring states to use bipartisan or nonpartisan commissions to draw the lines. Ending the scourge of partisanship in redistricting will not only assure that members of Congress are more representative of the will of the voters; it will also help to create the conditions where candidates appeal to the center and are less driven by partisanship.
A more tightly drawn measure along these lines is likely to get more support than the sprawling H.R. 1. It would reverse many of the new suppressive laws that could be enacted by Republican legislatures, but it wouldn’t reach further into other issues that could pull apart majority support in the Senate.
Some Democrats and progressives, though, are pushing H.R. 1, seeing this as the only opportunity for change in this generation. Soon Democrats might lose control of one or both houses of Congress, which would mean H.R. 1 or other voting reform no longer have a chance of passing.
In 2006, I and others testified before the Senate Judiciary Committee that Congress needed to change the coverage formula of the preclearance provision of the Voting Rights Act because, without a change, the Supreme Court could strike the measure down as exceeding congressional power. But Congress and good government groups decided to roll the dice, believing the Supreme Court would never strike down a crown jewel of the civil rights movement. The gamble did not pay off, and Shelby County has made things far worse.
We are at a similar moment now. H.R. 1 is unlikely to make it out of the Senate. It should be swapped out for a measure more directly targeted at the voter suppression to come that could actually be signed by President Biden and upheld in full by the courts.
Holding out for a perfect bill, in the end, will just prevent the enactment of a good one. At the moment, it seems more likely that nothing will become law before the 2022 elections than that H.R. 1 will. And then Democrats will look back at yet another missed opportunity to protect voters.
