After gaining a majority in the House this past November, Democrats in Congress have made strengthening voter rights a priority.
Since the start of the 116th Congress, Democratic representatives have introduced ten voting rights bills in addition to the roughly thirty bills introduced in the 115th Congress, making them on track to quadruple the number of voting rights bills introduced last session. The explanation the sharp increase lies in the history of voting rights legislature combined with the outcome of the midterm elections.
The history of voting access is a long and fraught one. For much of American history, suffrage was withheld from many Americans. In the mid twentieth century, systematically disenfranchised groups of Americans took up the fight for a just voting process. In 1965, the passing of the Voting Rights Act ensured racial and lingual minorities protection from discrimination in voting laws proposed by state and local governments. It was this law that specifically outlawed literacy tests and other similar historic means of disenfranchisement, making it one of the most historically significant laws of the Civil Rights era.
However, almost fifty years later in April 2010, Shelby County, Alabama filed suit to declare Section 5 of the Voting Rights Act unconstitutional. Section 5 requires jurisdictions with a history of discrimination—as determined by Section 4(b)—to submit proposed changes in voting procedure to the U.S. Department of Justice or a federal district court in D.C. before changes can be enacted. This ensured that the changes would not harm minority voters; preclearance has indeed been shown to consistently protect minority voters from discrimination.
On June 25, 2013, the Supreme Court ruled Section 4(b) of the Voting Rights Act to be unconstitutional on the grounds that the coverage formula in the section had become outdated. In his opinion, Chief Justice Roberts wrote, “The Voting Rights Act sharply departs from these basic principles [of state rights] … despite the tradition of equal sovereignty, the Act applies to only nine States (and several additional counties) … As a result, Section 5 is inoperable until Congress enacts a new coverage formula to amend Section 4(b).” In her dissent, Justice Ruth Bader Ginsburg famously wrote, “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” As of 2019, Congress has not passed any proposed amendments to the Voting Rights Act since Shelby County v. Holder.
The effects of the ruling were felt immediately. Just hours after the ruling, Texas implemented a strict photo ID law. Less than two months later, North Carolina passed HB589, which instituted a strict photo ID requirement, curtailed early voting, eliminated same-day registration, restricted pre-registration, ended annual voter registration drives, and eliminated the authority of county boards of elections to keep polls open for an additional hour. By 2015, fifteen states had implemented stricter ID laws following the Supreme Court decision.
Republican legislators and legislatures tend to advocate for and pass ID laws. Critics of ID laws point out that they seem to disproportionately disenfranchise minority groups; a study in Michigan showed that the twenty-eight thousand voters who did not hold IDs were more nonwhite and leaning Democratic than the Michigan electorate as a whole. In fact, Republicans seem to regard voter ID laws as beneficial for their own candidates. Pennsylvania House majority leader Mike Turzai controversially admitted that the newly-passed voter ID laws in the state would “allow” Mitt Romney to win it in 2012. But it is not just Republican legislators who are in favor of increasing ID laws: according to a 2016 poll by the Washington Post and ABC News, the American public seems to view voter fraud as a pressing issue and largely supports bills that supposedly aim to curtail it.
On the other hand, Democrats largely believe that voter fraud is a myth, or at the very least a hyperbole. They argue that gerrymandering has posed roadblocks for minority voters since 2012. In four states in particular—Ohio, Michigan, North Carolina, and Texas—Democratic candidates gained support but relatively few seats in the midterm election. All four states share two striking similarities: in 2011, congressional districts in these states were redrawn to condense minority communities into smaller numbers of districts, and every state also had some form of voter ID law. This combination may explain the disparity between popular support and seats gained. Democrats want to close that gap, and their actions in the House since winning control of it have reflected that interest.
The first bill proposed by House Democrats since gaining the majority in November aims to strengthen voting rights by addressing the issues discussed above. In addition to updating the coverage formula in Section 4(b) of the Voting Rights Act, HR1, also known as the “For the People Act 2019,” aims to accomplish the following: the establishing of automatic voter registration, Election Day registration, two weeks of early voting in every state, an end to aggressive voter purging, funding for states to adopt paper ballots, the restoration of voting rights for ex-felons, the declaration of Election Day as a federal holiday, and mandating that independent commissions draw congressional maps instead of state legislatures. Additionally, the bill would push to repeal Citizens United v. FEC, a Supreme Court decision that deemed unconstitutional a law that prohibited corporations and unions from making expenditures in connection with federal elections.
But HR1 does not seem to have an immediately viable future. President of the Institute for Free Speech David Keating argues that HR1 is unconstitutional. Referring to the language repealing Citizens United, Keating stated, “What gives government the right to regulate speech about the president and Congress?” Others claim that voter suppression is overblown. Furthermore, critics of early voting point out three main issues with the policy: voters who cast their ballots up to forty-six days ahead of time have different information than those who vote on Election Day; people can vote impulsively, say, after reading an inflammatory article; and early voting helps incumbents stay in office because they are more familiar to the public eye.
Furthermore, voting rights has been a staunchly partisan issue over the past two years. Republicans have introduced just one bill on the topic since the beginning of the 115th Congress. While there is actually Republican support in Congress for improving the Voting Rights Act, party leaders and the Trump Justice Department are unlikely to take significant action on the issue. As such, none of the voting rights initiatives promoted by House Democrats are likely to go anywhere in the near future, as long as the GOP has the Senate and Trump has the pen. Indeed, as of now, none of the proposed bills addressing voting rights have made it past the introduction stage.
Nevertheless, the push to address voting rights is significant in two ways. First, it introduces voting rights as a national issue, setting the stage for sweeping reform in the case of a Democratic majority in Congress as a whole. The newfound momentum also reinvigorates the push to restore an effective but long-neglected law. Many believe that this moment provides a historic opportunity to make more just our electoral system by seriously considering how to strengthen the integrity of our democracy.
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