An under-the-radar voting rights bill in Congress could prevent the election fight in Georgia from happening again
The political battles over voting laws are at a new fever pitch, with Democrats accusing Republicans of trying to suppress participation by minority voters, and Republicans accusing Democrats of hyperbole and bad-faith objections.
Voting experts say that there are ongoing attempts to enact voter suppression laws and that there is also overheated rhetoric that in some cases has exaggerated the perceived ills of a law passed in Georgia recently.
Voting law expert Rick Hasen, author of “Election Meltdown,” said one of the reasons that the voting wars are so intense is because over the last eight years a key guardrail, which had prevented bad laws from being passed by state legislatures, has gone missing.
While there has been lots of attention on the Democrats’ voting rights bill named the For the People Act, or H.R. 1, there is another bill in Congress that would reduce the existential nature of these debates by restoring that guardrail, namely the “preclearance” provision of the 1965 Voting Rights Act.
That bill is called the John Lewis Voting Rights Act, and a bill similar to it was passed in 2019.
“The important thing to realize is that from 1965 until 2013, Georgia would not be able to do this immediately, and put into effect a potentially suppressive voting law,” Hasen said. “All voting changes had to be approved by the federal government under Section 5 of the Voting Rights Act, which the Supreme Court killed off in the Shelby County case.”
In 2013 the U.S. Supreme Court eliminated the practice of preclearance in Shelby County v. Holder. Until then, states with a history of racial discrimination in voting laws had been required to show that any changes to election law would not be discriminatory.
The Supreme Court decision, which was written by Chief Justice John Roberts, put the burden of proof on litigants to show that a voting law was discriminatory. A state’s history of racial discrimination, in effect, was no longer relevant to the courts, Roberts and four other justices decided.
“Things have changed dramatically” since the 1965 passage of the VRA, Roberts wrote. “Problems remain in these States and others, but there is no denying that, due to the Voting Rights Act, our Nation has made great strides.” Nine states were covered by the VRA in 1965, and counties and townships in five other states came under the act in its subsequent renewals.
The court’s Shelby decision left open the possibility of renewal of preclearance for state and local election changes but said that Congress needed to approve new formulas to trigger the scrutiny of the federal government.
“Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions,” Roberts wrote.
The day that Section 5 of the Voting Rights Act was struck down, Texas Attorney General Greg Abbott, a Republican who is now the state’s governor, said that a voter ID bill that had been blocked by the courts would go into effect immediately. That bill allowed gun permits to be used for voting, but not student IDs, an imbalance which clearly favored Republican voters. An estimated 600,000 registered Texas voters did not have any of the proper IDs at the time.
A 2019 report issued by Democrats in Congress found that since the Shelby decision a number of states had “aggressively purged otherwise eligible voters from the voter registration rolls, made cuts to early voting and same-day registration, moved, closed, or consolidated polling places without adequate notice to voters, required exact name or signature match, engaged in discriminatory gerrymandering, and restricted language access and assistance.”
In addition, Republicans who led aggressive efforts over the past two decades to find evidence of widespread or coordinated voter fraud have concluded that such cheating does not happen in any significant way.
“I’ve been looking at polling places for 38 years as part of my duties and passion for the Republican Party doing well in elections,” former Republican lawyer Ben Ginsberg told Yahoo News last year. “We’ve been looking for fraud, and I know what evidence is available, and there’s not anything like the evidence to make the bold assertion that our elections are rigged and fraudulent.”
But for two decades, Republicans have used claims of fraud and cheating to justify erecting obstacles to voting. It started with President George W. Bush’s administration in the early 2000s, then really accelerated after the Supreme Court struck down preclearance in the Shelby decision in 2013. Then, of course, came President Donald Trump and the fiction that the 2020 election had been stolen.
So now, without the barrier of the preclearance requirement, the voting debates are supercharged as the party that controls state legislatures — which has been the GOP in many states for the last decade — can jam through voting changes that give them an advantage.
This has incentivized Democrats to try to head off such attempts with some of the tactics seen in Georgia recently, which resulted in Major League Baseball moving its All-Star Game from Georgia to Colorado. By putting pressure on corporations to cut ties to Georgia, liberals and progressives hope to stop other states from following in the Peach State’s footsteps.
President Biden has repeatedly referred to Georgia’s new voting law as “Jim Crow on steroids,” while Republicans have insisted that the Georgia law is less restrictive than the ones in place in some blue states such as New York.
But Hasen argues the truth is more complicated and says the new Georgia law “is a mixed bag.”
“Some parts of it actually make some sense in making things better,” Hasen said. “Some parts of it can only be understood as an attempt to suppress the vote among counties where you’re going to find large numbers of minority voters. And some of it is really aimed at making the vote counting process more politicized, which I think is the least covered but most dangerous aspect of the law.”
The biggest problem with the Georgia law, Hasen said, is that “Republicans are feeding the Trumpian base of the Republican Party, which believes the false claims that the election was stolen and it's something needs to be done.”
MLB’s move of the All-Star game to Colorado will highlight the vast differences between that state’s election laws and Georgia’s, which has a long history of racist voter suppression against African Americans. For several years now, Colorado has automatically registered all eligible voters and sent them a mail-in ballot, while allowing them to vote in person if they wish wherever they want. Colorado also offers a large number of drop boxes, while the Georgia bill limited the number that could be offered. Colorado has worked to implement technological innovations to prevent ballot fraud as well.
“The results are obvious & the voting experience has been improved for all,” tweeted Amber McReynolds, who was the director of elections for the city of Denver when they implemented their reforms, and is now CEO of the Vote at Home Institute.
Due to Shelby decision’s rules on how and when preclearance could become law again, it’s unlikely the John Lewis Act will be passed anytime soon. The Supreme Court decision required that a new evidentiary record be established to justify preclearance every two years, each time a new Congress began.
So the current version of this bill likely won’t be voted on in the House until September. And even then, there is broad Republican resistance to this legislation in the Senate. So it might simply become part of the Democratic argument to get rid of the legislative filibuster.
Nonetheless, the John Lewis Act is likely to gain more attention in the coming weeks and months. And should Democrats find a way to pass it, experts like Hasen argue, it could lower the temperature on conversations around voting rights.
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