The Democrats Are Walking Right Into a Trap on Voting Rights

• May 24, 2021

The battle over voting rights in Congress has entered a critical stage. The Greeks have now rolled a large wooden horse up to the gates of Troy. Some among the Trojans believe the Greek Army has left. The debate now is whether to open the gates and bring the gift into the city.

It is our strong view that that would be a mistake.

The Trojan horse in this story is an idea floated by Sen. Joe Manchin of West Virginia, the key vote in the Senate for any voting rights or democracy reform. Manchin, desperate to find bipartisan support for democracy legislation, has now signaled that he believes he could secure such agreement for the John Lewis Voting Rights Act, H.R. 4, at least if its provisions were expanded to cover the nation as a whole. And while he has not yet said this critical part definitively, the implication is that Congress should pass that bill with bipartisan support, and leave to another day the much more comprehensive democracy reform package also being considered by the Senate just now, the For the People Act, otherwise known as H.R. 1 or S. 1.

We strongly support H.R. 4, and firmly believe that the Constitution, properly interpreted, would support it. But we are also fully convinced that a clear majority on this Supreme Court would invalidate H.R. 4 — even more certainly with Joe Manchin’s amendment. And because the reasons for that invalidation are so clear in the opinions of those justices, we are not convinced that offers of bipartisan support for H.R. 4 are in good faith. We don’t doubt Manchin’s intentions—he has long signaled his strong support for both voting rights in particular and democracy reform generally. But we are convinced that at least some on the right see an expanded H.R. 4 as a simple way to give voting rights reform a temporary victory, but one certain to be undone by the Supreme Court after the sun sets on this Congress.

H.R. 4 is a response to the Supreme Court’s 2013 decision in Shelby County v. Holder sidelining Section 5 of the Voting Rights Act. That provision had required certain jurisdictions to preclear changes in voting laws, so as to give the Justice Department a chance to verify that those changes did not wrongfully impact minority voters. The Supreme Court rejected that system in 2013, finding, in the words of Chief Justice John Roberts, that “things had changed,” and that Congress could no longer simply presume the systematic racism that had justified the Voting Rights Act in 1965. To continue to regulate these jurisdictions in particular, Congress would have to make new findings to prove to the court that the racism of the past continues to this day.

That showing would be difficult enough, given the character of this Supreme Court. But even if it could be sustained in some jurisdictions, Manchin’s idea to extend the remedy to all of America would certainly fail the Supreme Court’s test. Thus, even if Manchin could make good on his promise and get his version through Congress, it would, in our view, certainly be struck down by this Supreme Court. And Congress would have squandered its best opportunity for much-needed democracy reform by passing a proposal that is precisely contrary to what the current court has determined is constitutional.

The alternative to H.R. 4 is H.R. 1 — an omnibus reform package that includes, among other provisions, much more comprehensive voting rights reform, also penned by John Lewis, as well as gerrymandering reform and, for the first time ever, a way for congressional candidates to fund effective campaigns with small-dollar contributions only.

This bill, though applying to federal elections only, is almost certain to survive Supreme Court review, because this bill builds upon an express power given to Congress in the Constitution, the elections clause, to protect its own elections. Roberts himself expressly invoked that constitutional authority when suggesting how Congress might address the problem of partisan gerrymandering. That same reasoning would support the voting rights provisions of H.R. 1 as well as the other critical reform that bill includes.

Yet H.R. 1 is not going to garner any Republican support, because the current leadership in the Republican Party is convinced that its own future depends upon preserving the power of state legislatures to gerrymander, as well as the power to suppress the equal freedom of Democrats to vote. The more than 350 bills now being considered in state legislatures to make it harder for Americans to vote may well be motivated by race. They are certainly motivated by politics: The clear strategy of the Republican Party is to fix the rules to make it harder for American citizens — who also happen to be Democrats—to vote, so as to secure political power to Republicans. If they succeed, then our federal democracy, always only precariously majoritarian, is almost certain to become predictably minoritarian.

But what if the 50-state H.R. 4 were amended to apply to federal elections only? Even this, we don’t believe, the current Supreme Court would uphold. While the constitutional foundation for the regulation of federal elections is certainly stronger, the idea that every state would have to preclear changes in its election law through the Department of Justice would turn the Constitution on its head. The Constitution gives the states the first shot at determining election rules. Congress is free to override those rules; but we are certain that the Supreme Court would not permit Congress to force all states to seek permission from a federal agency before they can exercise a presumptively constitutional state power.

Everyone should want bipartisan support for democratic reform. But that fantasy should not obscure the clear reality of the moment: H.R. 1 is the only opportunity for this Congress to secure to all Americans an equal freedom to vote while minimizing the risks of partisan gerrymandering and the continued and overwhelming influence of big money in politics. While we certainly believe that Congress should also pass the original H.R. 4, if only to assert what the Framers of the 14th and 15th Amendments certainly believed — that it was to be Congress, not the courts, that gets to say how to protect the equal freedom to vote—it would be a catastrophic mistake for majoritarian democracy if Congress did not pass H.R. 1 first.


You can read the full article by Guy-Uriel Charles and Lawrence Lessig

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Guy-Uriel Charles & Lawrence Lessig & Lawrence Lessig

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