politics

What Would the John Lewis Voting Rights Act Actually Do?

John Lewis in Selma, 1965. Photo: Bettmann Archive

By announcing his opposition, Joe Manchin has effectively killed the For the People Act (H.R. 1/S. 1) that the House has passed twice and that every other Democratic senator is co-sponsoring. So attention is naturally shifting to the proposed John Lewis Voting Rights Act that Manchin does support (with modifications), claiming with no real evidence that it — unlike H.R. 1/S. 1 — can command bipartisan support. In either event, he says, he will not support eliminating or weakening the power to filibuster that requires 60 votes for passing any non-budget legislation in the Senate.

The John Lewis Act aims to restore provisions of the Voting Rights Act of 1965 that were struck down by the Supreme Court in 2013 on grounds that they were obsolete. While a previous version of the legislation passed the House in 2019, it never secured a vote in the then-Republican Senate. A new version of the bill is under development by the Congressional Black Caucus, which is again updating the provisions the Court found fault with, to ensure the bill will pass judicial muster if enacted. Its sponsors estimate the bill will be introduced in late June or in July.

How does the John Lewis Act differ from H.R. 1/S. 1?

Descriptions of the two pieces of legislation are often boiled down to the For the People Act as broad and the John Lewis Act as narrow. That’s true, but the bigger difference is that H.R. 1/S. 1 is a highly prescriptive bill preempting state voting and election laws, mandating many practices (e.g., automatic and same-day voter registration and easily available early voting) and prohibiting many others (e.g., unnecessary voter-roll purges and partisan gerrymandering).

The John Lewis Act, like the original Voting Rights Act it restores, creates procedural rules governing voting-rights violations. Section 2 (which was left alone by the Court) creates a cause of action in court for private parties or the federal government to challenge voting or election laws that are intended to, or have the effect of, diluting minority voting rights. The far more powerful Sections 4 and 5 created a system whereby jurisdictions with a history of discriminatory practices would have to submit changes in voting and election laws and procedures to the Civil Rights Division of the Justice Department for review and “preclearance” as non-discriminatory before they could take effect. It was Section 4, setting up a formula for determining which jurisdictions fell under the Section 5 preclearance requirement, that the Court killed. A new Court-proof Section 4, with updated data on discriminatory practices, is the principal purpose of the John Lewis Act.

Here’s where Manchin’s wrinkle comes in: He proposes that the preclearance requirement simply be applied to all 50 states (while Section 4 was in place, the VRA applied to nine ex-Confederate states and scattered cites or counties in California, Florida, Michigan, New York, North Carolina, and South Dakota). That would have the advantage of avoiding the problems that led the Court to strike down Section 4 as unfair to supposedly reformed southern states, and would also finesse the political disadvantages of choosing between discriminatory and non-discriminatory jurisdictions. But there could be some offsetting logistical issues with forcing every voting and election procedure change in America to undergo DOJ review. There’s a reason (paralyzing the whole system) the 50-state “solution” used to be favored routinely by southern opponents of the VRA itself.

Would the John Lewis Act stop the current explosion of state laws restricting voting rights?

As indicated earlier, many of the provisions in the state Republican-enacted voter-suppression laws popping up after the 2020 election would be flatly (and retroactively) prohibited by H.R. 1/S. 1. The John Lewis Act would simply stop future laws and procedural changes from taking effect without a Justice Department preclearance. It’s hard to know exactly which laws and procedural changes would and would not pass muster, and it’s worth considering that a future Republican administration might very well reverse pro-voting-rights guidance set down by the Biden administration.

But without question, the John Lewis Act would slow down, and might well inhibit, voter-suppression activity. Indeed, in a 50-state preclearance world, it would likely take a very large increase in funding for the Civil Rights Division to keep preclearance reviews from freezing current voting and election rules in place for a significant period of time.

Can the John Lewis Act conceivably get through Congress without being filibustered?

The premise of Manchin’s argument is that because the Voting Rights Act was last extended (in 2006, seven years before the Court gutted it) by a unanimous Senate vote and a Republican president (George W. Bush), legislation that would restore it should command considerable bipartisan support. The trouble is, it doesn’t. When the bill passed the House in 2019, only one Republican (Brian Fitzpatrick of Pennsylvania) voted for it. Only one Republican senator (Lisa Murkowski of Alaska) co-sponsored the legislation then, or has announced support for it going forward.

Perhaps there is reason for Manchin to think that killing the John Lewis Act would be marginally more embarrassing to the GOP than killing the For the People Act, given the party’s past support for the VRA. But there’s little doubt Republicans will find a way to justify doing it in, by either (a) taking the Supreme Court’s position a bit further and arguing racial discrimination in voting simply no longer exists, or (b) arguing any voting-rights legislation must include “election integrity” provisions addressing their (and Trump’s) phony-baloney fraud claims. “Whataboutism” has become the standard Republican excuse for refusing to do the right thing. And Manchin almost certainly knows that by now, which is why my colleague Jonathan Chait concludes that his arguments are incoherent.

What Would the John Lewis Voting Rights Act Actually Do?