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The Fight Over Whether Democrats Should Even Try to Compromise on Voting Rights

Slate logo Slate 6/4/2021 Sofia Andrade
Joe Manchin wearing a suit and tie: The man at the center of it all. Michael Swensen/Getty Images © Provided by Slate The man at the center of it all. Michael Swensen/Getty Images

At an event marking the centennial of the Tulsa Massacre on Tuesday, President Joe Biden once again offered his support for two voting rights bills that Democrats in Congress are trying to pass: the For the People Act (known as H.R. 1 in the House and S.B. 1 in the Senate) and the John Lewis Voting Rights Act. Critically, Senate Majority Leader Chuck Schumer has given an end-of-June deadline for bringing S.B. 1 to the Senate floor.

Both bills seek to expand equitable access to the polls. Both bills also aim to counteract the widespread assault on voting rights coming from Republican state legislatures, where hundreds of voter restriction bills have been proposed. In a number of states with full Republican control of the state government, like Florida and Georgia, these bills are now law.

Given this reality, both the For the People Act and the John Lewis Voting Rights Act have been portrayed as essential to preserving a right to vote that is under its greatest assault in decades. But with the current politics of the filibuster and staunch Republican opposition in the Senate, both bills at the moment face a steep uphill climb to passage. What are the differences between the two bills, which elements are actually essential to protecting the right to vote, which might be sacrificed if it means gaining difficult passage in the Senate, and which portions have the best chance of winning over key holdouts? Democrats are going to have to try to answer these questions in the weeks ahead, and experts are torn on whether there is room for changes to both pieces of legislation and the potential dangers to modifying or dumping either bill.

Where the John Lewis Voting Right Act is a small, targeted fix towards one aspect of voting rights, the For the People Act represents expansive and largely unprecedented democracy reform.

The original Voting Rights Act of 1965, a landmark piece of Civil Rights legislation, required states with a history of racial discrimination in their voting practices to obtain preclearance—or approval from the Department of Justice or the U.S. District Court for D.C.—before changing any of their voting laws or practices. The law was meant to prevent racial discrimination from historically bad actors at the height of Jim Crow and it largely succeeded. In the 2013 case Shelby County v. Holder, though, the Supreme Court overrode these preclearance rules in a 5-4 decision along ideological lines.

The John Lewis Voting Rights Act aims to restore those preclearance provisions and the full scope of the original Voting Rights Act. According to Guy-Uriel Charles, a professor of law at Duke University, the John Lewis Voting Rights Act can be thought of as primarily concerned with “racial discrimination in voting.” Given that various pieces of Republican state voting legislation have been shown to have disparate impacts on Black voters in particular, forcing states to seek approval before enacting discriminatory policies would have no small impact.

The For the People Act, on the other hand, would go beyond the John Lewis Voting Rights Act to nationalize key voting practices and reform key elements of the campaign finance system.

The bill has four main sections. The first section contains specific provisions which would serve to protect voters from the restrictive voting laws passed by Republicans, such as requiring that each state provide automatic voter registration for federal elections. This section also includes the Disability Voting Rights Act, which would guarantee the right for people with disabilities to use absentee voting, and the John Lewis’s Voter Empowerment Act, which would, among other things, modernize voter registration protocols. The second section deals with partisan gerrymandering, both outlawing it and outlining a specific set of rules on how redistricting should be done, including requiring that states do so through an independent commission that is equal parts Republican, Democrat, and independent. The third focuses primarily on targeting the power of money and big corporations in Washington by increasing the transparency of political donations and advertising (by requiring that groups who make large donations to political campaigns reveal their donor lists) and amplifying the impact of small donors through donation matching programs and more stringent campaign contribution limits. Lastly, the For the People Act introduces a variety of ethics and election security provisions—such as providing funds for states to perform risk-limiting audits—all of which would help secure future elections from the wholly unfounded claims of fraud that colored the 2020 election.

Some of the more specific practices outlined in the For the People Act—many of which have already proven successful on the state level—include limiting voter roll purges, requiring both automatic and same-day voter registration, restoring voting rights to all previously incarcerated felons who have completed their sentence, and requiring at least two weeks of early voting.

These requirements reverse moves by Republican lawmakers to limit voting in battleground states like Florida, where Jim Crow-esque restrictions by the GOP-controlled legislature have meant that hundreds of thousands of previously incarcerated felons have yet to regain the right to vote despite an amendment to enfranchise former felons passing with the support of 65 percent of Florida voters in 2018.

Only one Republican, Alaska Sen. Lisa Murkowski, has indicated she might support a version of the John Lewis Voting Rights Act, while opposition to the For the People Act is uniform in the GOP conference. The Voting Rights Act, at least, did not used to be a partisan issue—in 2006, a Republican-controlled Congress and former President George W. Bush extended the original Voting Rights Act (with all its provisions) for 25 years.

While all the provisions in the For the People Act work to protect voting rights, some experts, like Richard Hasen, a professor of law at the University of California, Irvine, believe that a smaller bill—where, in theory, Democrats would remove some of provisions in order to make it more palatable to congressional Republicans, or perhaps centrist Democratic Sen. Joe Manchin—would be more likely to pass.

“A more pinpointed law, including one restoring a key part of the Voting Rights Act, could make it out of the Senate to guarantee voting rights protections for all in the 2022 and 2024 elections,” he said in a Washington Post op-ed.

Hasen argues that some of the bill’s provisions, like its rules on campaign finance reform and public financing, are part of a “wish list of progressive proposals that make it unlikely to survive debate in the Senate,” and should be jettisoned in order to make the bill more passable. Instead, Hasen believes Congress should prioritize reinstating the preclearance provision of the original Voting Rights Act, require that states offer online voter registration and at least two weeks of early voting (whether by mail or in person) for federal elections, and require that states use voting machines that produce a piece of paper to be used for any potential recounts. Another provision Hasen argues for keeping is the requirement for states to use nonpartisan or bipartisan commissions in redistricting so as to prevent partisan gerrymandering.

“Ending the scourge of partisanship in redistricting will not only assure that members of Congress are more representative of the will of the voters,” he writes, “it will also help to create the conditions where candidates appeal to the center and are less driven by partisanship.”

Hasen is not alone. Certain political pundits have also advocated for introducing a “skinny” For the People Act. Shrinking the bill, though, seems unlikely to move enough members of an obstinate Republican conference to overcome a filibuster, others argue, and sacrifices important reforms.

“The core strategy of Republicans in Congress is to block democracy reform—because the core strategy of the Republicans in the states is to do everything they can to make it harder for Democrats to vote and have their votes count equally,” Harvard Law professor Lawrence Lessig wrote on Thursday.

Ultimately, passage for either bill is likely to come down to Democrats’ willingness to modify the filibuster in the Senate.

With a 50-50 tie broken by Vice President Kamala Harris (who recently took lead on the issue of voting rights), Democrats will almost certainly need every member of their caucus to support such a move to pass either bill. Sens. Kyrsten Sinema of Arizona and Manchin of West Virginia, though, have repeatedly signaled their opposition to breaking the filibuster and their desire for a bipartisan approach where none appears able to succeed. Manchin has indicated that he could endorse a version of the Voting Rights Act that extends preclearance to every state, rather than just those that have shown a history of discriminatory practice, but as Charles and Lawrence Lessig have argued in Slate, such an approach has a serious risk to falter in the courts.

“Imagining a statute that says, ‘Okay, we’re going to subject all the states to preclearance, whether you’re really bad, whether you’re perfectly fine, whether you’re in the middle, all of you are going to be subject to preclearance,’” Charles said, “the probability that the court will uphold that type of preclearance regime I don’t think is extremely high.”

Even in its current state, where it requires preclearance only for states that have shown at least 15 voting rights violations in the last 25 years, the John Lewis Voting Rights Act is at least somewhat susceptible to the same court arguments that gutted the original Voting Rights Act in Shelby County.

The For the People Act actually stands on more solid legal footing, but as Lessig told me about the probability of getting one passed over the other, “I don’t see any difference. Both require getting past the filibuster.”

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