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What Does the Future Hold for a Federal Voting Rights Bill?

By Laura Temme, Esq. on January 28, 2022 8:09 AM

The most recent Democratic-backed voting rights plan in Congress combined two pre-existing bills: The John Lewis Voting Rights Advancement Act and the Freedom to Vote Act. Both stood to make significant changes to voting procedures across the U.S., but their recent failure to advance in the Senate has proponents reevaluating how they can accomplish their goals.

Reinstating Preclearance Requirements for Some States

The John Lewis Voting Rights Advancement Act aimed to reinstate provisions of the Voting Rights Act of 1965 that were struck down by the Supreme Court's 2013 decision in Shelby County v. Holder. These "preclearance" provisions required states with a history of racial discrimination in voting to gain approval from the Department of Justice for any proposed changes to voting procedures.

In Shelby County, the Court held that preclearance requirements exceeded Congress' authority and violated the 10th Amendment. The 10th Amendment gives state governments all powers not explicitly granted to the federal government, including the power to regulate elections.

"The Voting Rights Act sharply departs from these basic principles," Chief Justice John Roberts wrote. "It requires states to beseech the federal government for permission to implement laws that they would otherwise have the right to enact and execute on their own."

The Voting Rights Advancement Act attempted to overcome the Shelby County decision by updating the preclearance formula that the Supreme Court concluded was outdated. Under the proposed law, states would be covered by preclearance requirements if state or local governments committed 10 or more voting rights violations in the last 25 years. Preclearance would also be triggered if the state government had no voting rights violations, but localities racked up 15 violations in that time. However, a jurisdiction could discontinue preclearance measures if it goes 10 years without violations.

Revisiting Campaign Finance Reform

The Freedom to Vote Act covered several important voting rights issues, including eliminating partisan gerrymandering and establishing a minimum number of days for early voting. But the bulk of the bill focused on campaign finance reform.

The Supreme Court's 2010 decision in Citizens United v. Federal Election Commission slashed campaign finance regulation, leaving the door open for political action committees (PACs) to raise unlimited funds. The court concluded that limiting "independent political spending" by corporations or individuals violated the First Amendment. But the practical result of Citizens United was the dramatic expansion of influence that corporations and special interest groups have on U.S. elections.

The Freedom to Vote Act proposed that any entity spending more than $10,000 in an election must disclose its major donors. It also would require all internet campaign ads to identify sponsors and online platforms to provide searchable databases of past advertising.

Shifting Focus to the Electoral Count Act

Efforts to pass the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act met their end in the Senate earlier this month when Democrats couldn't muster enough votes to overcome a filibuster. Now, proponents of voting rights legislation have to get creative.

A growing bipartisan group is working on overhauling the Electoral Count Act of 1887, an obscure piece of legislation former President Donald Trump attempted to use to overturn the 2020 election. Enacted after the highly acrimonious 1876 presidential election, where Democrat Samuel Tilden won the popular vote but ultimately lost the presidency to Rutherford B. Hayes, the act attempted to lay out procedures for counting electoral votes.

At the time, Congress had no rules to deal with contested election results coming in from multiple states. But the resulting law is notoriously complex and has been criticized by legal scholars for most of its existence.

The ECA allows Congress to debate what to do with a state's electoral votes if one member of the House and one senator write an objection to vote counts from a given state. But, the act doesn't detail what types of objections are appropriate. Following the 2020 election, Trump allies argued that the ECA meant then-Vice President Mike Pence could throw out legitimate election results.

Proposed changes to the ECA include limiting the grounds on which a legislator can object to counting a state's electoral votes and creating clear-cut time limits for states to choose their electors. But fixing the ECA only addresses one facet of election subversion and doesn't do much of anything to combat what Democrats and activists argue is voter suppression. On both fronts, legislators appear to be facing an uphill battle as midterm elections loom.

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