By: Maler Suresh
The Senate recently voted on the Freedom to Vote: John R. Lewis Act, a voting rights bill which combines the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. It is designed to restore elements of the Voting Rights Act and nullify new voting restrictions that have emerged in 19 states following the 2020 election. However, the bill was struck down 51-49 in the Senate (majority leader and New York Senator Chuck Schumer changed his response to "no" before the vote was gaveled so that he can offer a motion to reconsider the vote in the future.) The decision was split along party lines, with Democrats voting for the bill and Republicans voting against it. Technically, when the Senate is split 50-50, the Vice President, Democrat Kamala Harris, should have the tie-breaking vote. However, because of the filibuster, a simple majority is not enough. The Democrats needed 60 votes to pass this legislation, meaning that it required votes from the opposing party. Votes that they knew they wouldn’t get. Democrats were aware that this bill would not pass, but they pushed it to the floor anyway, hoping to highlight Republicans’ refusal to confront the voting rights crisis.
The discussion on the floor was mainly defined by two claims. Democrats argued that Republicans are allowing America to regress by preventing citizens from exercising their right to vote, which also has a disproportionate impact on minority voters. Republicans saw the legislation as the Democratic party’s attempt to gain control over state elections. When making remarks before the vote, Senator Chuck Schumer, asked “Shall we see American democracy backslide in our time, grow feeble in the jaws of its adversaries, and ultimately succumb to the cancer of voter suppression? The answer, in a large sense, could depend on how we move forward this evening.” In contrast, Senate Minority Leader and Republican Senator of Kentucky, Mitch McConnell, accused Democrats of seeking to “shatter the soul of the Senate for short-term power.”
In a final attempt to get the bill passed, Democrats attempted to alter the Senate’s filibuster rules in order to allow the voting rights measure to move forward with a simple majority. However, they lacked support both within the party and outside of it to change the filibuster rules. Along with all Republicans, Democratic Senators Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona voted against the rule change. “We’ll make up new rules as we go along, invite ourselves and future majorities to disregard the rule book at will,” Mr. Manchin said. “Let this change happen this way and the Senate will be a body without rules.”
Why Does This Matter?
In recent years, American elections, more specifically questions about the integrity of American elections, have been used as vehicles for contentious partisan politics. The effect being that the public has decreasing faith in our democratic system— an issue that Republicans are taking advantage of in order to justify new voting restrictions and increase Republican-controlled state legislatures’ control over the administration of elections. Not only do these new practices further subvert the intentions of our democratic system, they are also likely to disproportionately affect voters in racially diverse, densely populated areas, creating obstacles to voting that point to regress rather than progress.
Additionally, due to the weakened state of the Voting Rights Act of 1965, which specifically sought to address and diminish these obstacles, these restrictions are now much more difficult to combat in the Courts. In the Supreme Court case Brnovich v. Democratic National Committee, the Court evaluated the constitutionality of two Arizona laws under the context of the Voting Rights Act. One law stated that someone who cast their vote at the wrong precinct would have their entire ballot tossed out, even for races such as president or governor, in which precinct is not a factor. The other law restricted the circumstances under which vote-by-mail ballots could be turned in by a third party who was not related to the person in question. While these laws limit certain aspects of voting for all voters, they especially target minority groups such as the Navajo Nation, which noted: “Arizona’s ballot collection law criminalizes ways in which Navajos historically participated in early voting by mail. Due to the remoteness of the Nation and lack of transportation, it is not uncommon for Navajos to ask their neighbors or clan members to deliver their mail.” In line with this, the U.S. Court of Appeals for the 9th Circuit (a lower court to the Supreme Court) found both Arizona rules to be discriminatory against minority voters in the state. However, the Supreme Court split 6-3 between the court’s conservatives and liberals, with the majority voting to overturn the lower court because the burden on voters of color was too “modest” to violate the Voting Rights Act. This decision was a departure from the precedent that the Supreme Court base decisions related to the Voting Rights Act on the “social and historical conditions” created by race discrimination. While the current court didn’t deny that voters of color were disproportionately affected, it gave Arizona’s current laws a pass because it may be “virtually impossible for a State to devise rules that do not have some disparate impact” and because Arizona’s laws only affected a small number of voters overall. All of this implies that discrimination can stand, as long as there’s only a little bit of it. The Supreme Court also created its own “guideposts” for evaluating a discriminatory law. However, these guideposts are based on the 1982 edit of the Voting Rights Act which 1) should not necessarily be considered as the paragon of voting rights statute 2) is outdated in the context of how we now conduct elections. In 1982, states didn’t use computers in election administration, early or mail-in voting wasn’t as widely used, and voters of color were not as large of a segment of the electorate. The effect of basing recent guideposts on 1982’s outdated provisions is that it is now extremely difficult to challenge discriminatory laws. It also created loopholes for discriminatory laws, making discrimination likelier to occur.
Brnovich v. Democratic National Committee is not the first time that the John Roberts court has undercut voting rights. In the 2013 case Shelby County v. Holder, the court eliminated the Voting Rights Act’s essential provision requiring jurisdictions with a history of discrimination to obtain federal government “preclearance” for any changes to their voting policies in order to ensure they weren’t discriminatory. When combined with the Brnovich case, the result is that discriminatory laws are not simply unobstructed by preclearance but also upheld by the Court.
What Would the Freedom to Vote: John R. Lewis Act Have Done (if it passed)?
Following the failure of the Court to uphold non-discriminatory voting access, it was up to Congress to pass legislation that overwrote these decisions. Such were the intentions of the Freedom to Vote: John R. Lewis Act. The bill would have expanded ballot access by
requiring states to offer automatic voter registration, as well as registration online and on Election Day. All states would also have to have an early-voting window at least 15 days before the election and make mail-in ballots available to all voters. The bill also would have relaxed identification requirements, requiring states to accept any documentation with an individual's name issued by federal, state, tribal or local governments. Under the Freedom to Vote Act, former felons who have been released from prison would have their voting rights restored to them and restriction on giving food and water to voters in line would also be prohibited. The bill would also retrigger the “preclearance” practices set up by the Voting Rights Act. In order to combat partisan gerrymandering, the bill would legally give federal courts the power to police congressional lines that were drawn to give one party an advantage, and it would give the Department of Justice, private citizens, and political parties the ability to bring lawsuits challenging congressional maps. In an effort to combat financial corruption, the bill includes the “DISCLOSE Act” which would require politically active nonprofits to publicly disclose their funders and create various public financing programs for House elections, such as the “optional democracy credit program,” which would provide voters a “democracy credit” of about $25 which they can give to a candidate of their choice. The bill also makes it an explicit crime to “intimidate, threaten, or coerce” election workers “with intent to impede, intimidate, or interfere with such officials while engaged in the performance of official duties,” and it would make Election Day a federal holiday for both midterm and presidential years. Finally, contained within the bill is the “Right to Vote Act,” which states that “Every citizen of legal voting age shall have the right to vote and have one’s vote counted in elections for Federal office free from any burden on the time, place, or manner of voting,” and prohibits “retrogression,” which would be “diminish[ing] the ability to vote or to have one’s vote counted … [unless] the law, rule, standard, practice, procedure, or other governmental action causing the diminishment is the least restrictive means of significantly furthering an important, particularized government interest.” Experts believe that this would open up expansive opportunities to sue over voting practices, which is especially important following the weakening of the Voting Rights Act which previously stood as the people’s primary defense against discriminatory election practices in court.
What Now?
The implications of the most recent vote are twofold. Firstly, by voting to keep the filibuster as is, it is apparent that much of the Democrat’s agenda will be stymied. Already, Republicans have blocked multiple bills including legislation to establish a committee to investigate the January 6 insurrection and a measure aimed at guaranteeing equal pay in the workplace. Other bills, like a deal on police reform and policies intended to establish universal background checks for gun purchases, to protect workers’ right to organize, and to shield LGBTQ people from discrimination, have collapsed because they haven’t been able to garner sufficient Republican support. Whatever policies emerge next will need to be much more limited in order to have a chance at passing with Republican support. Secondly, the inability of the Senate to pass voting rights legislation means that the democratic rights of the public are further unprotected. While voting rights advocates and the Department of Justice can still challenge restrictions in court under the 14th and 15th Amendments, it is apparent from the Court’s earlier decisions that it will continue to cut away at Congressional authority over voting rights and give increasing leniency to the states. As such, Democrats have resigned themselves to spending millions of dollars on voter-registration and turnout programs in order to educate voters on how to comply with new rules and work around emerging restrictions. They can only hope that Republican restrictions will backfire, serving as motivators that spike turnout rather than succeeding at limiting it. However, a backfire is only possible if citizens fulfill their responsibilities as members of a democratic society. When the people are no longer fully protected by the Court or Congress, bodies of government that are meant to serve them, it is up to them to use the vote to reassert their power and recreate their government in a way that once again serves their best interest. As Congress spends money to help voters navigate an increasingly convoluted system, it is also up to voters to educate themselves on their rights, prepare to face emerging obstacles, and vote in order to hold officials accountable to serving their rights.
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