April 12, 2021

S.1 Is Not the Voting Rights Act


KEY TAKEAWAYS

  • Leading Democrats have frequently compared S.1 to the Voting Rights Act of 1965, ignoring sweeping differences between the two, both in substance and legislative process.
  • The VRA, which prevents states from discriminating against minorities, passed with broad bipartisan support, and each of the five major updates were bipartisan.
  • S.1 contains many provisions unrelated to voting, as well as dozens of half-baked ideas that states will struggle to implement before the next election.

Key provisions of S.1/H.R.1, like undermining state voter ID laws, remain unpopular with the general public. To bolster their bill’s popularity, Democrats have tried to affiliate it with the historic Voting Rights Act of 1965. Unfortunately for Democrats, S.1 bears little resemblance to the earlier law. The VRA was short, relatively simple, and focused on preventing racial discrimination in elections. It was grounded firmly in a power granted to Congress, specifically by the 15th Amendment. The VRA and its five subsequent amendments in later years won bipartisan support − the original bill received 77 votes in the Senate, and none of its amendments over the years got more than 20 nay votes.

The Voting Rights Act and S.1

The Voting Rights Act and S.1

By contrast, S.1 is a sprawling 818-page behemoth covering a wide range of issues. Many of its provisions, like the creation of a code of ethics for the Supreme Court, do not relate even tangentially to discrimination. Unlike the VRA, the partisan legislation’s only plausible chance at becoming law requires the permanent alteration of the Senate through destruction of the filibuster.

VRA Basics

Passed in the aftermath of the Civil War, the 15th Amendment to the Constitution prohibits the federal government or states from denying citizens the right to vote “on account of race, color, or previous condition of servitude.” It also grants Congress the power to enforce the amendment through “appropriate legislation.” The VRA is grounded in that power.

Section 2 of the act, split into two sections in the U.S. Code, prohibits voting restrictions based on race, color, or membership in a language minority. This is the section most often applied in the context of congressional redistricting plans. Restrictions on voting are deemed illegal if “based on the totality of the circumstances” electoral processes “are not equally open to participation” by members of the group in question. This lack of opportunity to participate is judged based on whether members “have less opportunity than other members of the electorate to elect representatives of their choice.”

Section 3(c) allows a court to retain jurisdiction over a state that the court found in violation of the 14th or 15th Amendments. Those jurisdictions must seek permission from the court to change their election laws.

Current Status of the VRA

Current Status of the VRA

The remaining two significant parts of the VRA, sections 4(b) and 5 are inactive due to the Supreme Court’s holding in the 2013 case Shelby County v. Holder. Section 4(b) created a “coverage formula” that determined which states and jurisdictions were required to obtain preclearance from the attorney general or the U.S. District Court for the District of Columbia before changing any voting law. Section 5 dictated the process for granting preclearance. The coverage formula was based on whether the state or jurisdiction had a voting test in the 1960s or ’70s and low voter turnout in that era.

The Supreme Court overturned the coverage formula in section 4(b) on the grounds that conditions had changed dramatically since the formula was adopted, but the formula still depended on data from decades earlier. Without the “exceptional conditions” of “insidious and pervasive evil” that prevailed in some parts of the country in the 1960s and ’70s, section 4(b) violated the normal constitutional requirement that all states have equal sovereignty. Without section 4(b), section 5 is moot since there is no formula to determine what states section 5 applies to.

S.1: A Far Cry from the VRA

S.1 and the VRA differ radically on substance, process, and overall approach. The VRA has a few precisely calibrated rules with the clear aim of eliminating discrimination in voting laws. S.1 contains dozens of rules that undermine election security. States will not be able to implement all of these half-baked mandates by the next election.

The bill’s requirement that states allow ballot harvesting, for example, opens an obvious avenue for fraud where harvesters fill in and return other people’s ballots. That is not hypothetical, it is precisely what has happened in the past. Avoiding this outcome requires careful oversight, but states with no history of ballot harvesting will be simultaneously implementing this rule and dozens of others ranging from mandatory automatic voter registration to using only self-sealing envelopes.

In addition to being onerous, the new rules display a lack of attention to detail. For example, self-sealing envelopes tend to jam U.S. Postal Service bulk-sorting machines. This one little micro-managing provision of S.1 will create delays.

S.1’s mandate for states to allow felons to vote in federal elections after their release from prison is another example. Most states do not allow a felon to vote in state elections the moment they are released from prison. Those states will either have to allow felons to vote in state elections − a very unpopular idea − or they will need two separate voter rolls and two separate ballots for state and federal elections. State officials will have to choose between a politically untenable initiative their voters hate or a disastrously complicated logistical challenge.

At the federal level, S.1 advances many policies unrelated to voting. For example, it requires the federal government to pay a 6-to-1 match for political donations up to $200. The federal government could pay up to $1,200 for a donation made to a candidate for federal office. Given that candidates can already legally pay themselves a salary from campaign funds, this is a recipe for federal dollars subsidizing politicians.

Unsurprisingly, if S.1 is to become law, it must follow a drastically different path than the bipartisan VRA. The VRA passed 77-19, with more Democrat nay votes than Republican. The five subsequent amendments to the VRA all passed with bipartisan votes: 64-12 (1970); 77-12 (1975); 85-8 (1982); 75-20 (1992); and 98-0 (2006).

Democrats wrote H.R.1, the House version of S.1, with no Republican input. They then passed it through the House with no Republican votes and one Democrat nay vote. Democrats are now openly debating how to permanently render the filibuster toothless in order to eke out 50 votes plus a vice presidential tiebreaker to pass S.1 through the Senate. 

Issue Tag: Judiciary