How the Senate should fix the House voting rights bill

We need commonsense election and voting reforms in America, but House effort took a partisan turn

There are important, bipartisan, commonsense reforms that would benefit every voter — but these conversations have become mired in partisan conflict, Weil and Thomas write.  (Tom Williams/CQ Roll Call file photo)
There are important, bipartisan, commonsense reforms that would benefit every voter — but these conversations have become mired in partisan conflict, Weil and Thomas write. (Tom Williams/CQ Roll Call file photo)
Posted August 27, 2021 at 12:33pm

Earlier this week, the House passed the John R. Lewis Voting Rights Advancement Act, a long-awaited core component of Democrats’ voting rights agenda. Despite early indications from select Republicans that they would like to work together on a revived Voting Rights Act, key partisan components of the measure make it unlikely to garner 60 votes in the Senate in its current form.

The bill seeks to reassert the ability of the federal government to curb state voting legislation that is discriminatory to voters of color. This mighty aspiration is critical to restoring the bipartisan legacy of the Voting Rights Act and protecting all voters’ access to the ballot.

For much of this year, voting advocates have held out hope that the bill could bring about real, positive change in election administration. In its current form, the measure would reinstall many of the core components of the Voting Rights Act through historically successful policies such as preclearance, transparency and a totality of circumstances review of potentially discriminatory voting rules changes.

However, we at the Bipartisan Policy Center Elections Project have three main concerns with the bill.

How it was introduced

The legislation would frame voter ID requirements above the federal minimum as evidence of vote denial, effectively neutering one of Republicans’ top election reform priorities (enhanced voter ID). In doing so, House Democrats knowingly closed the door to bipartisan compromise, in spite of broad and increasing public support for voter identification requirements (in the form of either photo ID or a number of more accessible alternatives). Moving forward, it’s crucial for Senate Democrats to approach the bill with an air of civility and compromise to advance this necessary repair to our elections system.

Impact on the voting experience

The voting rights bill would create a “practice-based” preclearance requirement that would make it very difficult for states to adjust their voting options to meet the needs of voters on an ongoing basis. The bill’s primary enforcement mechanism would be preclearance, a policy that requires certain states to get approval from the federal government before making defined changes to their election laws. Practice-based preclearance is a new and separate form of national preclearance that would apply to each state and political jurisdiction, with certain practices only covered in jurisdictions meeting defined racial group and language thresholds.

The inclusion of changes that would reduce, consolidate or relocate voting locations or opportunities is an area of particular concern. By requiring preclearance for any change to voting locations and opportunities, the bill risks bogging down election officials’ efforts to adapt to changing circumstances in their jurisdictions.

Election administration is a constant exercise in meeting the rapidly shifting needs of a dynamic and diverse electorate. The Senate’s bill should enable election officials to flexibly change voting locations and opportunities because of emergency events as global as the COVID-19 pandemic and as local as inclement weather.

Unintended consequences

The House measure would establish new criteria for determining which states and political subdivisions must obtain preclearance. This formula would consider the number of voting rights violations that occurred in a political subdivision within the last 25 years.

The 25-year lookback period is a strategic and partisan move clearly aimed at expanding the pool of covered states. Since 1996, the realization of the National Voter Registration Act, the 2000 presidential election and the Help America Vote Act have transformed American elections, making 25 years an unreasonable and illogical length of time to determine preclearance.

Furthermore, because voting rights violations would be determined by judicial proceedings, the bill would incentivize interest groups to file huge numbers of cases to try and get a state covered under preclearance. Unnecessary litigation is a drain on government time and resources — particularly those of election officials — that should be spent serving voters.

The 2020 election created and exposed divisions among Americans that are an ongoing threat to our democracy. There are important, bipartisan, commonsense reforms to election administration that would benefit every voter — but these conversations have become mired in partisan conflict.

By turning the John Lewis Voting Rights Advancement Act into a partisan bill, the House missed a rare opportunity to further the enduring, bipartisan legacy of the Voting Rights Act. The Senate should refocus the conversation on real progress and pass a version of the bill that brings meaningful and positive change to voting in America.

Matthew Weil is the director of the Bipartisan Policy Center’s Elections Project. 

Christopher Thomas is a fellow with the Bipartisan Policy Center’s Democracy Project with 40 years of experience in election administration.