Widespread Republican opposition to two major pieces of voting rights legislation is leading some Democratic lawmakers and activists to fear that Congress will be unable to pass either bill this year, even as several state legislatures enact restrictive voting measures.
Later this month, the Senate is set to take up S. 1, or the For the People Act, an expansive but controversial voting and elections reform bill. The measure was already unlikely to pass, as Democrats hold a razor-thin 50-seat majority in the Senate, and 60 votes are required to advance most legislation. Democratic Senator Joe Manchin also announced Sunday that he opposes it, hammering another nail in its legislative coffin.
But Manchin does support another voting rights bill, one that has yet to be introduced in this session of Congress — the John Lewis Voting Rights Advancement Act, named for the late congressman and civil rights icon.
This bill, also known as H.R. 4, would restore a key provision of the Voting Rights Act of 1965 struck down by the Supreme Court in 2013. That provision required certain jurisdictions with a history of racial discrimination in voting to receive approval, known as preclearance, from the federal government before making changes to their voting rules.
The Voting Rights Act established a formula to determine which areas should be covered by Section 5, which required certain jurisdictions to submit any changes to the Justice Department or a panel of federal judges for approval. The law was reauthorized in 2006, but the formula for dictating which jurisdictions should be subject to preclearance had not been significantly updated.
The Supreme Court struck down the formula in the Shelby County v. Holder ruling, a 5 to 4 decision divided along ideological lines. Lawmakers “reenacted a formula based on 40-year-old facts, having no logical relationship to the present day,” Chief Justice John Roberts wrote in his decision.
“Congress — if it is to divide the States — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past,” Roberts wrote. “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.”
The high court did not strike down Section 5, but without a formula to determine which jurisdictions are subject to preclearance, it is entirely unenforceable.
The federal Commission on Civil Rights released a report in 2018 that found that several states had enacted “newly restrictive statewide voter laws” in the wake of the Shelby County v. Holder ruling, including closing polling places, limiting early voting, purging voter rolls and implementing stricter voter ID laws.
Advocates argue that it is even more important to pass both For the People Act and the John Lewis Voting Rights Act now because of the recent efforts by Republican-led states to enact more restrictive voting measures. As of mid-May, state legislators have enacted at least 22 bills with restrictive voting provisions in 14 states, according to the Brennan Center for Justice. Changes to voting procedures in several states, including Georgia, Arizona and Florida, have already been signed into law, while a bill overhauling elections in Texas has been temporarily stalled.
The John Lewis Voting Rights Act seeks to create a new formula for determining how jurisdictions should be subject to preclearance. But bill has to be both airtight constitutionally and provide evidence that certain jurisdictions are employing practices that specifically discriminate against minority voters.
A version of the bill was introduced by Democratic Congresswoman Terri Sewell in 2019 and passed in the House, but stalled in the Senate, which was then controlled by Republicans. It would have subjected a state to preclearance for 10 years if 15 or more voting rights violations occurred in the state during the previous 25 years. A political jurisdiction would have been subject to preclearance for a 10-year period if three or more voting rights violations occurred there during the previous 25 years.
Some Democrats have suggested pivoting focus to the John Lewis Voting Rights Act instead of the Voting Rights Act, as it may be more likely to garner Republican support. GOP Senator Lisa Murkowski was an original cosponsor of the bill when it was introduced in 2019, and is expected to support it again.
But Speaker Nancy Pelosi dashed any hopes of prioritizing the John Lewis Voting Rights Act in the House, saying in a letter to Democratic colleagues on Tuesday that “H.R. 4 must be passed, but it will not be ready until the fall, and it is not a substitute for H.R. 1,” referring to the House number for the For the People Act.
“When we pass H.R. 4, we must do so in a way that is ironclad constitutionally. This is what Congressman Butterfield and the House Judiciary Committee are hard at work on now,” referring to Congressman G.K. Butterfield, who chairs the House Administration subcommittee overseeing federal elections.
Butterfield’s subcommittee is conducting field hearings to compile evidence of discriminatory practices that will then be shared with the Judiciary Committee, which will do the markup for the bill. He said in an interview with CBS News that he expected his subcommittee to complete its work and provide “thousands of pages” of evidence by the end of June.
“We have evidence that there is widespread discrimination that is continuing in many states across the country,” Butterfield said. He added that the voting restrictions enacted in several states across the country had a “devastating impact on democracy.” He said it was necessary to pass both the John Lewis Voting Rights Act and the For the People Act, saying that “each one accomplishes a different outcome.”
Senator Raphael Warnock, a Democrat from Georgia, told reporters on Tuesday that it was a “false choice” to prioritize the John Lewis Voting Rights Act over For the People Act.
“I’m glad that we have the John Lewis bill, appropriately named in his honor. But let’s be clear, John Lewis spent his last 10 years fighting for the provisions in the For the People Act,” Warnock said. “It’s not an either or proposition. We’ve got to pass John Lewis in order to protect voting rights. We’ve got to pass the For the People Act to provide some basic standards for our elections.”
Like For the People Act, the John Lewis Voting Rights Act has very little chance of passing in the Senate. It is highly unlikely that nine other Republicans will join all Democrats in supporting the bill. Senate Minority Leader Mitch McConnell came out Tuesday in opposition to the bill, indicating that it is incredibly unlikely that the bill will garner sufficient Republican support.
“There’s no threat to the voting rights law,” McConnell told reporters, arguing that the John Lewis Voting Rights Act would give the Justice Department too much power over states. “I think it’s unnecessary.”
Some progressives inside and out of Congress have pushed for eliminating the filibuster, which would allow legislation to advance with a simple majority instead of 60 votes. But ending the filibuster would require support from all 50 Democrats, and Manchin has emphatically said he would never agree to do so.
Manchin is not alone in his opposition either. Although he and Senator Kyrsten Sinema are the most vocal opponents of eliminating the filibuster, other Democrats have privately raised concerns about ending the practice as well.
With the filibuster likely to remain in place, Democrats have no choice but to continue to put pressure on Republicans. Although Butterfield said that “we at this moment don’t have any reason to believe that 10 or more Republicans will join with the 50 Democrats” to support this bill, he nonetheless hoped that it would be able to garner support in the same way that the 2006 reauthorization of the Voting Rights Act did.
Butterfield said that he expected H.R. 4 to be brought to the House floor and passed by the end of September, and then hopefully be considered by the Senate by October.
“I sincerely believe that there are more than 10 Republicans that understand the urgency of updating the Voting Rights Act,” Butterfield said.