[Voting Rights Attorney Marc] Elias said he's confident many of these [voting] restrictions would not withstand a legal challenge. "We're not talking about the garden-variety voting restrictions that historically the two parties have disagreed over," he said. "We're talking about really, really extreme measures. … I'm not going to prejudge which provisions are acceptable and which provisions are not. But I do think that what we're seeing right now is just so far out of bounds."
Many of these provisions, particularly in Southern states with a history of voter discrimination, would have been subject to the pre-clearance requirement under Section 5 of the Voting Rights Act before it was gutted by the Supreme Court in 2013.
“Many of them would not have been pre-cleared because they are in fact retrogressive of minority voting rights," Elias said.
Salon, February 27, 2021, on the extreme voter suppression measures Republicans are proposing in many states.
Years ago, after living, organizing, and voting in a number of different states it became clear to me that when it came to the franchise there were two different kinds of states: (1) those that made it easy to vote and (2) those that didn’t. With years of voter suppression and intimidation efforts by conservatives, it’s worse today than when I started organizing 30+ years ago – and after losing the most recent national election and failing to overthrow the government on January 6th, Republicans plan to make it even worse. The states in category 2 don’t just want to make voting difficult, they want to suppress people from voting altogether – particularly if they can prevent non-white folks from voting.
This weekend, we saw reports that states and localities (in some places, counties have their own election rules) around the nation – particularly in those states that voted for Biden but have GOP control in at least one branch of state government – have already proposed at least 253 different laws to turn back the clock on voting rights.
Driven by the Big Lie that was rejected in dozens of recent lawsuits, Republicans are pushing all sorts of voter suppression efforts under the fiction that they are remedies for existing voter fraud problems. For anyone considering the evidence – historical as well as recent – the fact that widespread voter fraud is a non-issue is as obvious as any made-up problem could be. In fact, in this country the real problems in voting are the attempts to prevent people from freely exercising their rights to do so. These are problems that can be drawn straight back to emancipation in the wake of the Civil War. Right wingers today continue to look back to voter suppression efforts of former slave owners against freedmen and dress them up in new rationalizations. In the end, nearly all voter suppression efforts disproportionately impact nonwhite voters – so much so that one might conclude this is intentional.
Let’s take Georgia as an example. Republican legislators in the Peach State are considering reducing or outlawing the use of drop-boxes and requiring more stringent ID requirements for mail voting. They are also proposing to outlaw early voting on Sundays, when Black churches often organize voter drives. In fact, the GOP is even proposing to make it a crime to give food and water to voters waiting in line to vote. (Strangely enough, this is already a crime in Georgia; it just is not enforced.) Remember this: there has not been any evidence of organized or widespread voter fraud in Georgia for which any of these proposals would serve as a remedy. These laws are designed to prevent voting, not protect it. According to Salon: “Georgia and Arizona lawmakers have been particularly aggressive, introducing 22 bills in each state to restrict voting access. Even Georgia Secretary of State Brad Raffensperger, a Republican who debunked many of Trump's lies about the state's elections despite supporting certain voting restrictions, said many of the bills introduced in the state legislature are ‘reactionary to a three-month disinformation campaign that could have been prevented.’"
Yesterday, the Supreme Court heard oral arguments in Brnovich v DNC. The case concerns two voting laws in Arizona. One requires election officials to reject and discard ballots cast out of precinct (including votes cast for statewide office and president). The other makes it a crime to non-fraudulently collect mail ballots properly cast by others and deliver them to election officials. The 9th Circuit Court of Appeals ruled that both laws have illegal discriminatory impacts and the latter law was enacted with discriminatory purpose.
There are some indications from the questioning – particularly by Justices Thomas and Barrett – that the case could be dismissed on standing. However, on the merits, it did not sound like there would be more than three votes supporting the 9th Circuit’s opinion (which struck down the two state laws at issues). Justice Barrett sounded like the one conservative justice most skeptical of the GOP’s positions, and she did not sound all that skeptical.
Many are concerned that the Court will take this opportunity to overturn the Voting Rights Act of 1965 altogether or at least weaken section 2 as it did to section 5 (pre-clearance) in its 2013 decision in Shelby v. Holder. However, there was no clear discussion about the constitutionality of the Act despite the GOP’s lawyer making some arguments that the Reconstruction Amendments (13th, 14th, and 15th) call for a different standard than the 9th Circuit articulated in its decision.* It did not sound like that particular line of argument was persuasive to any of the justices, but most court observers will tell you that it is difficult to foresee what judges will ultimately do by listening to oral arguments.
The chances that the Supreme Court will overturn the 9th Circuit’s decision are high. That’s not just my opinion. Such a decision will give the states clearer authority to enact voter suppression laws. If Congress acts quickly it can moot the Court’s decision before it issues it. Brnovich v DNC is about the interpretation of section 2 of the VRA, but the specific laws at issue would not be permissible under a law Congress is currently considering, HR 1. Congress will also soon be considering the John Lewis Voting Rights Advancement Act (HR 4), which will restore the Voting Rights Act to its pre-Shelby interpretation (among other things).
HR 4 will help to correct the impairment to the VRA made by SCOTUS. According to Salon: “The John Lewis Voting Rights Advancement Act would, among other things, restore the pre-clearance requirement for states with a history of racial discrimination to get approval from the Justice Department before enacting any electoral changes.” The Brennan Center has good review of what the John Lewis Voting Rights Advancement Act will do. It can be found here.
The For the People Act (HR 1) is expected to go to a vote in the House this evening (Wednesday March 3, 2021). If enacted, the Act will set uniform standards on a number of voter and election issues, many of which are subject to the 253 voter suppression proposals being floated by the GOP across the country right now. Although there are likely to be amendments, the Act will do many things including the following.
Require states to allow same day voter registration.
Permit voters to make voter registration changes at the polls.
Require automatic voter registrations when persons utilize services at state agencies unless voter opts out.
Make Election Day a federal holiday.
Makes it a criminal offense “to corruptly hinder, interfere with, or prevent another person from registering to vote.”
Authorizes pre-registration for 16 and 17 year-olds.
Prohibits voter caging and voter-roll purges (sets specific conditions for removing voters from roll).
Restores voting rights to felons who have completed their prison terms.
Requires paper trail for election audits.
Creates voluntary public financing for campaigns, matching small donations 6:1.
Provides stricter limitations on foreign lobbying.
Requires super PACs and other dark money orgs to disclose donors.
Requires presidential and vice presidential candidates to public disclose ten years of income tax returns.
Eliminates use of taxpayer money by members of Congress to settle employment discrimination claims (members must reimburse federal treasury if they do so).
Requires Judicial Conference to establish rules of ethics binding on the US Supreme Court (which is currently the only court in the US without a binding canon of judicial ethics).
Requires states to use independent commissions to draw congressional district boundaries.
Prohibits partisan gerrymandering.
Changes the composition of the Federal Election Commission to five commissioners with no more than two from any political party.
A January 22, 2021 Data for Progress poll found 67% of likely voters support HR 1. This includes 56% of Republicans, 68% of Independents, and 77% of Democrats. Even if there is no Republican support in Congress for HR 1, there is plenty of support among regular Americans of all political types.
Despite what some GOP flacks are likely saying right now, the federal government has the constitutional authority to regulate elections in the way HR 1 proposes. States run elections but only subject to federal regulation. Everything in both of these bills is constitutional (with the possible exception of the tax return requirement; that’s debatable).
Make no mistake: what the GOP is proposing around the country is an effort to take us back to a time when poor and minority voters faced literacy tests, poll taxes, and outright intimidation at the polls. Reconstruction failed a long time ago, but we can continue the work that Radical Republicans began with the adoption of the postwar amendments. HR 1 is a really good start. The vote in the House is tonight.
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* The Voting Rights Act was enacted via Congress’s enforcement powers under section 5 of 14th Amendment and section 2 of the 15th Amendment.