As battles over voting rights continue in state legislatures around the country, attention in Washington has been focused on H.R. 1/S. 1, the For the People Act, a sort of kitchen-sink omnibus voting-and-elections bill the House has now passed twice.
It has approximately a zero chance of passage in the Senate, thanks to provisions that Republicans argue are remote from “voting rights,” such gerrymandering reform and public financing of congressional campaigns. The bill also preempts a vast array of state election laws in favor of highly prescriptive federal procedures, including automatic and same-day voter registration, mandated no-excuse voting by mail and third-party ballot collections, and restrictions on voting-roll purges. It’s entirely possible that federal courts would deem portions of the legislation unconstitutional. And more to the point, Senator Joe Manchin has made it clear he doesn’t support the For the People Act in its current form, and certainly wouldn’t support an exception to the filibuster to enable its passage on a party-line vote.
So election-law experts like Rick Hasen (along with yours truly) have argued the president and congressional Democrats should consider making a strategic shift to less controversial voting-rights measures, particularly the John Lewis Voting Rights Enhancement Act, another bill that passed the House in the last Congress. And now, such advice is being advanced via the much more morally compelling voices of the Congressional Black Caucus, Politico reports. As CBC member Anthony Brown of Maryland told reporters, the more focused legislation “would provide a real good opportunity for a handful of Democratic senators who want to hold onto the filibuster [to say] ‘Yes, we can do it on this John Lewis Voting Rights [Act].’” There’s also sentiment in the CBC that a decent number of Republicans might be brought onboard, thanks to widespread GOP support for the original VRA, expressed most recently when Congress enacted, and George W. Bush signed, an extension of the law in 2006.
Simply put, the John Lewis VRA is intended to fix the enforcement provisions of the original VRA that were gutted by the Supreme Court in the 2013 Shelby County v. Holder decision. The Court’s conservative majority held that the formula for determining whether jurisdictions were subject to the law’s Justice Department pre-clearance procedure for voting and election changes by state and local governments (mostly focusing on southern states with a long history of racist voter suppression) were outdated. So those drafting the latest version of the John Lewis bill are focused on fine-tuning that formula so that an even more conservative SCOTUS cannot strike it down again. That is why the bill has not yet been passed by the House or introduced in the Senate, as Politico explains:
“The [Supreme] Court is calling on us to update the formula and so that’s what we’re trying to do,” said Rep. G.K. Butterfield (D-N.C.), a CBC member who chairs the House Administration subcommittee overseeing federal elections. “You cannot just snap your fingers and update a formula. You’ve got to collect evidence” before a new version of the bill is released, he added.
Butterfield’s target date for getting that job done and beginning a push for passage of the legislation is June 30. But there is a reason for urgency beyond the need to capitalize on the momentum created by the backlash to voter-suppression laws in Republican-controlled states, namely Georgia. Proponents want to get a restored VRA in place before states that might be subject to the pre-clearance requirements finish up the decennial redistricting process and create congressional and state legislative maps intended to stay in place until 2032. These are precisely the kind of decisions the Justice Department used to scrutinize under the pre–Shelby County VRA.
It’s possible, of course, that, despite past GOP support for the original VRA, today’s radicalized congressional Republicans (particularly those from the states most affected by fresh federal scrutiny) will object to the John Lewis Act just as uniformly as they have opposed the For the People Act. Why not go for the broader legislation if this is all just a messaging gesture? The answer is that the embarrassment — perhaps even the shame — of opposing the restoration of voting-rights protections that Republicans routinely used to support might erode such opposition. And if not, then the manifest evidence that the GOP is simply obstructing all Democratic legislation — in this case, in a very bad cause — might strengthen the case for filibuster reform. It certainly seems worth a try.