House Democrats are poised to pass a sweeping election bill that would reestablish provisions of the Voting Rights Act the Supreme Court has already struck down in an effort to advance voting reforms that have repeatedly stalled on Capitol Hill.
On Tuesday, Alabama Democratic Rep. Terri Sewell introduced the John R. Lewis Voting Rights Advancement Act, or H.R. 4, against the backdrop of the Edmund Pettus Bridge in Selma, where famous protest marches occurred in March 1965. The bill’s namesake, who died last year, marched in Selma alongside Dr. Martin Luther King Jr.
It was part of Democratic attempts to wrap the legislation in the language and urgency of the original Voting Rights Act, which passed during the Civil Rights era to combat actively discriminatory practices still in use in some Southern states.
However, in the decades since its passage, the Supreme Court has declared several of its provisions unconstitutional. The Justice Department said Monday that absent congressional action, the administration would be unable to use the act to stop states from passing laws Democrats have said will suppress minority votes.
Kristen Clarke, the Justice Department’s civil rights chief, testified before the House on Monday that Congress should strengthen the Voting Rights Act to combat election security laws red states have pursued in recent months.
“It is now time for Congress to respond, by developing legislation that responds to our current situation, with respect to redistricting and otherwise — a situation in which voting rights are under pressure to an extent that has not been seen since the Civil Rights era,” Clarke wrote in prepared testimony for the House.
Unlike a previous version of election reform, the For the People Act, which failed to attract even all Democrats in the Senate, would not make any immediate changes to existing state laws. Rather, it would beef up the Justice Department and other interested groups’ tools to challenge voting laws in court.
The bill takes particular aim at a Supreme Court decision from 2013, Shelby County v. Holder, which stripped away the preclearance requirements of the Voting Rights Act — a ruling that voting rights advocates continue to criticize today.
Preclearance required states with histories of voter discrimination to submit any election rule changes to the federal government for review.
The Shelby decision struck down the provision of the Voting Rights Act that implemented a formula for deciding which states would be subject to the preclearance requirements.
Hans von Spakovsky, manager of the Election Law Reform Initiative and senior legal fellow at the Heritage Foundation, said H.R 4 would do more than revive the requirements that applied to a handful of states before the 2013 decision.
“This new provision actually expands the previous preclearance requirement by not only bringing that back so that certain states will have to get everything reviewed, but it puts in a new provision called practice-based preclearance,” von Spakovsky said. “What that means is, that will affect every single county in every single state across the country.”
The bill specifies several practices that could trigger preclearance requirements, even in states that don’t meet the historical threshold under the Voting Rights Act sections that H.R. 4 is attempting to revive, according to a summary of the legislation released on Tuesday.
Implementing voter ID laws or “reducing multilingual voting materials” are among the changes that would subject a state to review by the federal government, according to the summary. The bill describes any such rule change as a “practices-based trigger” that would allow the Justice Department to have a say in a state’s elections.
“This is as if you gave the DNC the ability to veto any state election law they don’t like,” von Spakovsky said.
Von Spakovsky cited a Department of Justice Inspector General report from 2013 looking into allegations of political bias in the voting section of the Justice Department’s Civil Rights Division, which found the screening process used for hiring new lawyers “resulted in a pool of select candidates that was overwhelmingly Democratic/liberal in affiliation,” according to the report .
The legislation would also undermine a more recent Supreme Court ruling, Brnovich v. DNC, that further strengthened legal protections for states that want to change their voting rules.
In that case, which the 6-3 Supreme Court handed down along ideological lines in July, justices ruled election reforms could stand even if they had a minimally disparate impact on minority groups, so long as all voters had a reasonable opportunity to cast their ballots.
The case focused on a pair of voting rule changes in Arizona — one that nullified ballots cast in the wrong precinct and another banning the practice of ballot harvesting, or the mass collection of mail-in ballots by a third party.
The Democratic National Committee challenged both rules using Section 2 of the Voting Rights Act, arguing voters of color were disproportionately affected by the practices, but the court ultimately disagreed that was the intent. That decision watered down the power of that Voting Rights Act section, according to voting rights advocates.
H.R. 4 would make it easier for political groups to challenge voting laws in courts based on alleged racial discrimination by reverting to an earlier understanding of Section 2 .
“Section 2 was designed to stop intentional discrimination that results in, for example, Black Americans not having the same ability to vote as others. They completely changed the legal standard for Section 2 to basically take the intentional part out,” von Spakovsky said of H.R. 4. “All it has to have is a disparate impact, which is a very dubious way of structuring the law.”
Beyond the effort to overturn the two Supreme Court cases, H.R. 4 would allow judges to halt changes to voting laws while lawsuits played out in courtrooms. High-profile changes to the Georgia voting laws face multiple legal challenges, including from the Justice Department. Still, they have already been implemented and put to use — at least in the case of a recent county-level investigation made possible by the new law.
But if H.R. 4 made it to President Joe Biden’s desk, the Justice Department could theoretically freeze Georgia’s rule changes while a judge reviews the case. And the protections states like Georgia enjoy when setting their own rules would also be weakened, lowering the chances Georgia would be able to keep their laws.
While House Speaker Nancy Pelosi has said she intends to bring H.R. 4 to the floor for a vote when Congress returns to Washington next week, the legislation faces an uncertain future in the Senate.
Democratic Sen. Joe Manchin has expressed skepticism about sweeping voting rights legislation in the past, opposing the For the People Act, so Democrats lack even 50 votes for the reforms.
The filibuster remains the biggest hurdle, as Republicans are steadfastly opposed to Democratic voting reforms, and multiple Democratic Senate moderates have said they are against changing Senate rules.