Time Is Running Out to Protect Voting Rights

President Biden and the Democratic leadership have spent months focusing their energy on getting infrastructure legislation passed. The time has come to pivot to focus the nation's attention on our constitutional infrastructure and protecting our right to vote. Senate Majority Leader Chuck Schumer is currently setting the John Lewis Voting Rights Advancement Act for a floor vote, in a final attempt to garner bipartisan support for a suite of voting rights infrastructure bills that have included the For the People Act and most recently, the Freedom to Vote Act.

If no Republicans will support these bills, it is imperative that the Senate suspend or amend the anti-democratic, supermajoritarian rules of that chamber, and acknowledge the absurdity of expecting the enemies of democracy to aid in its defense.

The act, named after the late congressmember and civil rights activist John Lewis, would update and restore protections of the Voting Rights Act of 1965 (VRA), arguably the most significant civil rights statute ever passed by Congress. Following the Supreme Court's 2013 decision in Shelby v Holder that dismantled important VRA requirements, many conservative state legislatures have passed sweeping laws designed to suppress voting that disproportionately impact minorities, the elderly, and young voters. In its 2013 decision, the Supreme Court urged Congress to take action and update the VRA. And, this summer, the Supreme Court further weakened protections against identifying and remedying voting rights violations under section 2 of the VRA in Brnovich v DRC.

Key components of the bill include:

• Requiring that proposed changes to election laws are pre-cleared through the Department of Justice for any jurisdictions with a record of legal violations within a period of 25 years
• Authorizing federal courts to place jurisdictions under such "pre-clearance" provisions for results-based voting rights violations
• Authorizing the Department of Justice to request federal observers for elections where there is a demonstrable threat of racial voting discrimination
• Requiring reasonable public notice for voting and election law changes
• Revising and tailoring the preliminary injunction standard for voting rights actions to recognize that there will be cases where there is a need for immediate injunctive relief, and
• Increasing accessibility and protections for Native American and Alaska Native voters.

A bipartisan history

As the new bill goes to the Senate floor, it is worth remembering that the Voting Rights Act of 1965 passed the House of Representatives 328 to 74 with strong bipartisan support. The first reauthorization vote passed in 1969 with broad Republican support; Richard Nixon signed it into law. Bipartisan supermajorities in the House and Senate reauthorized the VRA again in 1975, 1992, and 2006. After the 2006 reauthorization, which included unanimous Senate approval, Senator Mitch McConnell remarked that he was pleased to see the country "continue its progress towards becoming a society in which every person, of every background, can realize the American Dream."

But in December of 2019, when the late John Lewis, Georgia's long-time Congressman and Freedom Rider who was beaten by police during Selma's Bloody Sunday, banged the House gavel to mark passage of the next reauthorization, it marked an historic turning point in the safety of our democracy.

At that moment, it was not the content of the reauthorization that was historic, but the vote. The bill passed 228 to 187 on an almost pure partisan vote, with just a single Republican (Brian Fitzpatrick) joining Democratic members in support. The vote offered a clear signal that our political parties were divided over the most fundamental of our constitutional rights--the right to cast an equally weighted vote. At that time, Senate Majority Leader Mitch McConnell refused to even bring the bill up for debate.

We are now closing in on the end of the 2021 legislative cycle, a year that began with an insurrection on the Capitol and numerous legal attempts to overturn the results of the presidential election. We have, at most, a few months to address the spread of voting rights violations and the continuing erosion of our democracy. The Senate needs to pass the John Lewis Voting Rights Advancement Act, and a suite of other democratic protections, in time for them to be implemented before the 2022 elections. If no Republicans will support these bills, it is imperative that the Senate suspend or amend the anti-democratic, supermajoritarian rules of that chamber, and acknowledge the absurdity of expecting the enemies of democracy to aid in its defense.