A Democratic measure to restore key provisions of the Voting Rights Act is fueling an intense advocacy push, including high-profile marches over the weekend in Washington and other cities. Some of the bill’s provisions remain little understood, however.
House Democrats last week passed the bill named to honor the late Rep. John Lewis, known as HR 4, on a party-line vote. But even before that, activists who support the legislation had turned their attention to the Senate and the filibuster that stands in the way of it going any further. Demonstrators in Washington over the weekend singled out West Virginia Democratic Sen. Joe Manchin III and President Joe Biden, demanding they undo the Senate filibuster rule so the Senate’s Democratic majority could pass the bill without Republican votes.
The fight promises to rage into the fall, as conservatives ramp up their opposition and as voting rights activists push for the bill and another high-profile piece of Democrats’ agenda, a broader campaign finance and elections overhaul known as HR 1. Senate Majority Leader Charles E. Schumer said voting rights would be a top priority when the chamber returns.
Here are five things to know about the legislation as the debate takes center stage in the Senate — and beyond the Capitol.
1. New preclearance formula
The chief aim of the bill is to bring back and update the Justice Department’s ability to preclear, or give the OK to, election law changes in jurisdictions that have a history of discriminatory voting practices against minority voters. Congress is responding to the Supreme Court’s 2013 Shelby County v. Holder decision, which invalidated the mechanism the Justice Department had previously used, which was a provision of the Voting Rights Act of 1965.
“It provides a more dynamic formula around more recent events,” said Richard L. Hasen, an expert in political law who serves as chancellor’s professor of law and political science at the University of California, Irvine School of Law.
The House-passed bill says states and localities that had 15 or more violations in the past 25 years would need preclearance from Washington before any changes to voting laws they enact would take effect.
“When you go back and read the Shelby County decision, it didn’t actually strike down the concept of preclearance itself,” said Stephen Spaulding, senior counsel for public policy and government affairs at Common Cause, which supports the legislation. Instead, it struck down the formula to determine which states had to get preclearance, he added. The court said the previous system was outdated.
Going back 25 years is too far for some critics of the proposal — even those, such as Matthew Weil, director of the Bipartisan Policy Center’s Elections Project, who say they support the legislation overall.
2. Voter ID impact
The bill would also subject certain proposed laws to preclearance, even potentially in jurisdictions that would not otherwise fall under the 25-year lookback criteria.
The bill’s Section 6 would set out several practices, including changes to voter identification needed to vote and maintenance of voter rolls, that could be subject to preclearance. “All those that have been shown to be discriminatory would need to be precleared,” Spaulding said.
This has been characterized by the bill’s critics as banning voter ID requirements, something House Majority Whip James E. Clyburn, D-S.C., called inaccurate. Clyburn told CQ Roll Call columnist Mary C. Curtis on the Equal Time podcast that he carries an ID card he got 60 years ago when he registered and shows it when he goes to vote.
“I’m against photo ID — not voter ID, but photo ID,” Clyburn said. “When you tell me that a photo on a hunting license is good, or a gun permit is good, but a photo on a student ID card is not good, that’s what I have spoken out against.”
Weil said that in order for the legislation to attract bipartisan support, lawmakers would likely have to revise how it deals with voter ID requirements. “We’re probably going to have to have some compromise,” he said.
3. Effect on new state laws
Advocates say the voting rights bill named for Lewis is urgently needed to combat state efforts to roll back some of the pandemic’s voting practices, such as voting by mail, as well as other new restrictions. But the bill, should it become law, would be more forward-looking. Preclearance would apply to not-yet-enacted legislation and not to state laws already on the books.
That’s why advocates of the voting rights bill say they’re also lobbying for the campaign finance and elections bill known as the For the People Act, or HR 1 in the House and S 1 in the Senate. That measure would set minimum standards for voting nationwide, which has led Republicans to criticize it as a federal takeover of elections.
Senate Minority Leader Mitch McConnell has called the overhaul bill a Democratic power grab. “They want to mandate no-excuse mail-in balloting as a permanent norm, post-pandemic,” McConnell said earlier this year.
Still, even the voting rights bill named for Lewis could give the Justice Department more power to sue to block or overturn state voter laws and redistricting maps.
4. More litigation?
Weil has argued that, as written, the bill could provide incentives for interest groups or others to file legal challenges with the goal of getting a state covered under preclearance.
Spaulding, however, did not think that’s a worry. But the measure could make it easier for plaintiffs to bring, and possibly win, suits. That’s because the bill responded to another Supreme Court case this year, Brnovich v. DNC, that made it more difficult to challenge voting laws on the grounds of discrimination. That decision, which was aimed at Section 2 of the original Voting Rights Act, made it harder for an election change that causes a disproportionate impact to minority communities to be considered a violation of the law.
“In terms of challenging a law, this is the House coming back and saying, ‘This is what we meant in Section 2,” Hasen said, noting that the bill would create an easier standard for plaintiffs to prove.
5. Grant money
Because federal elections are administered at the state and local levels, the bill also would establish a grant program administered by the Justice Department to help jurisdictions with fewer than 10,000 people comply.
The grants would help those places comply with the requirements that they publish notices about “any change to a qualification, prerequisite, standard, practice or procedure affecting voting,” the legislation states.