Democrats’ Election Bill Dramatically Expands Federal, Judicial Control Over Elections

Speaker of the House Nancy Pelosi (D-Calif.) speaks during a press conference advocating for the passage of the Protecting the Right to Organize (PRO) Act in the House of Representatives later this week on Capitol Hill in Washington on Feb. 5, 2020. Samuel Corum/Getty Images

News Analysis

Democrats and Republicans battled on the House floor late into the evening Tuesday before voting to pass Rep. Terri Sewell’s (D-Ala.) ‘John Lewis Voting Rights Advancement Act,’ HR4. The measure was unanimously supported by Democrats and unanimously opposed by Republicans.

HR4 was designed, according to Sewell, to address allegations of minority voter suppression by state legislatures since the 2020 election. Democrats insisted that the bill is all the more urgent in the wake of two landmark Supreme Court (SCOTUS) cases, Shelby v. Holder and Brnovich v. Democratic National Committee (DNC), which struck down or limited the scope of certain provisions of the Voting Rights Act of 1965 (VRA).

In 2013’s Shelby, SCOTUS conceded that the “extraordinary measures” employed by the legislation, including a requirement that certain states get federal approval to change election laws, were justified in 1965. But, evaluating available data on elections in the 21st century, a majority of the justices agreed that the “extraordinary circumstances” of deliberate efforts at suppressing minorities’ ability to vote no longer existed. Because of this, the Opinion of the Court delivered by Chief Justice John Roberts struck down the so-called ‘preclearance provision’ of the VRA.

In 2021’s Brnovich, SCOTUS considered a suit by the DNC against the state of Arizona. The DNC alleged that Arizona laws restricting mail-in ballots were designed to target minorities and so violated another clause of the VRA. SCOTUS disagreed, and let the Arizona laws stand.

These two decisions were the primary impetus for Sewell’s introduction of the legislation, designed to reinstitute and reinforce the provisions of the VRA in alignment with SCOTUS’ wording in the two decisions.

Judges, Attorney General Given Ability to Strike Down Laws

The bill gives the Attorney General (AG) significant influence over state election laws. One section of the bill describes the process for striking down state-level voting laws that have already been enacted.

One method the bill outlines for striking down these laws is a temporary or permanent judgment from any U.S. court which “determined that a denial or abridgement of the right of any citizen of the United States to vote on account of race, color, or membership in a language minority group occurred.”

But the bill also gives the courts room for somewhat open-ended interpretation. A law can be struck down as well if a court determines “that a voting qualification or prerequisite to voting or standard, practice, or procedure … unduly burdened voters of a particular race, color, or language minority group, in violation of the 14th or 15th Amendment, anywhere within the State or subdivision.”

Since the 2020 election, Democrats have insisted that voter ID laws, restrictions on mail-in or absentee balloting, and other election integrity measures were designed to disproportionately affect minority voters. In Brnovich, SCOTUS rejected this claim. Studies justify this decision: a 2017 Stanford study (pdf) concluded that the claim that voter ID laws hurt minorities was inconclusive at best; a more recent Harvard study found that voter ID laws “have no negative effect on registration or turnout, overall or for any group defined by race, gender, age, or party affiliation.”

Despite very little conclusive evidence that these measures are discriminatory, HR4 would give judges the ability to make a largely subjective decision on the matter. If a judge determined that these election integrity measures were designed to hurt minority voters, with or without evidence, they would be immediately overturned.

If courts give a temporary judgment against a state law, the decision goes immediately into effect. While this could be overturned by an appeals court, it could cause significant damage if the decision were to be given just before an election. This would give courts a great deal of influence over elections, and would give them the ability to overturn key security measures days before an election.

The bill outlines in various places that there are several circumstances and arguments that should not be considered by a judge when deliberating on which decision to make. One such circumstance that should not be considered is the “proximity of the action to an election shall not be a valid reason to deny such relief.” It also asserts that “a State’s generalized interest in enforcing its enacted laws shall not be a relevant consideration in determining whether equitable relief is warranted.” Finally, the bill says that “mere invocation of interests in voter confidence or prevention of fraud” is not an acceptable reason for judges to avoid ruling on these laws or for states to put such allegedly restrictive laws in place.

The AG is granted effectively the same influence by the bill. At any time, the AG’s office can submit an objection against a state’s voting laws and prevent them from being enforced by any state or local government. HR4 also calls on the AG to make a list of voting rights violations annually; once published in the federal register, these determinations would go into effect and offending laws would be struck down.

Voter ID, Reducing ‘Multilingual Voting Materials’ Prohibited

In a section listing violations of the law, HR4 prohibits voter ID requirements and protects multilingual voting material.

The bill forbids “any change to requirements for documentation or proof of identity” that is “more stringent” than laws in effect on the day HR4 is enacted. This would effectively cripple states’ ability to pass new voter ID legislation, even as polls show 81 percent of Americans support voter ID measures.

Another violation of HR4 is a change to election laws that reduce the quantity of ‘multilingual voting materials’ or alter the method of distributing these materials. Under U.S. law, immigrants are required to demonstrate competency in English before being naturalized as citizens. This measure, in conjunction with the automatic registry system in the ‘For the People’ bill, would likely make it easier for illegal aliens who have not gone through the naturalization process to access and understand U.S. election material. This move comes as the United States faces the worst border crisis in its history.

Extra Powers Granted to Federal Government

Along with the powers given to federal courts and the AG earlier in the bill, HR4 would also restore the preclearance requirement revoked by SCOTUS in Shelby.

This updated version would require that before states enact new voting legislation, they get a declaratory judgment by the District Court for the District of Columbia affirming that the legislation “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group.” States are prohibited from instituting these practices without this judgment. The wording and procedures in this section are very similar to the language and procedures set out in the Voting Rights Act of 1965.

Democrats say that this measure is necessary to stop alleged voter suppression and restore that “key provision” of the VRA. House Speaker Nancy Pelosi (D-Calif.) also said on the House floor on August 25 that similar measures have been bipartisan in the past and that HR4 should not be a partisan issue.

Democrats insist that its preclearance requirement is the most important part of the bill but Republicans, for their part, have argued since the introduction of the bill that the preclearance measure amounts to a federal takeover of elections. On the Senate floor before the August recess, Sen. Ted Cruz (R-Texas) said that similar measures proposed in a separate Senate bill would “constitute a federal government takeover of elections” and would be “a massive power grab by Democrats.” On the House floor yesterday, Minority Leader Kevin McCarthy (R-Calif.) referred to the bill as an effort by Democrats to “rig an election.”

What’s Next for the Bill

Even though the legislation squeaked through the House on Tuesday, it faces a very steep challenge in the Senate.

Republicans have expressed opposition to the bill since its creation, and are unlikely to relent in this opposition. When it goes to the Senate, its first challenge will be to avoid a filibuster: given the 50–50 split in the upper chamber, (plus one from the Vice President), Democrats do not have the 60 votes that they need to stop a filibuster.

If the Democrats achieve a political miracle and avoid a filibuster, they will still need every vote in their caucus. If moderates like Sen. Joe Manchin (D-W. Va.) or Sen. Kyrsten Sinema (D-Ariz.) get cold feet about the legislation, it would not pass.

But even if the legislation gets through those hurdles, it would still face the courts, by no means an easy test. It is unclear whether the updated preclearance requirement could survive another SCOTUS ruling due to having similar wording and intent as the section struck down by the court less than a decade ago. Proponents of the legislation would have to make the case to SCOTUS that “extraordinary circumstances,” like those in 1965, made the bill necessary. This will be a difficult case to make: With record black turnout in 2020 and a continually closing gap between white and black voting rates, SCOTUS will likely come to the same conclusion as it did in 2013.

Yet another challenge would face the bill: resistance to its provisions at a state level. Some state-level politicians have vowed to use their office to fight federal election bills.

Secretary of State candidate Rep. Jody Hice (R-Ga.) has promised that he would use the office to resist federal government intrusions into elections.

In statements to The Epoch Times, two Arizona candidates for the office agreed. State Rep. Shawnna Bolick promised that she “will always defend election integrity and state sovereignty regardless of who attacks me.” State Rep. Mark Finchem responded “Absolutely. I would stand with Jody Hice all day long to defend locally managed elections.” He further described these bills as “efforts to make American elections like Soviet and Chinese elections.”

In view of this, the future is rocky at best for this controversial and expansive piece of legislation.