Yesterday, the House of Representatives passed H.R 4, better known as the John Lewis Voting Act sending it to the Senate for its approval or — most likely- dismissal. The bill was passed on a strictly partisan basis, with 219 Democrats voting for it and all 212 Republicans voting against it. The legislation would restore some of the measures of the Voting Rights Act of 1965 which were deemed unconstitutional by the Supreme Court in 2013.
Democrat heavyweights have all rallied up behind the bill, with Vicepresident Kamala Harris tweeting that the Senate ought to pass the bill in order to “protect voters across the country”. President Biden has also commended the bill, calling the Senate to join the House and “send this important bill (…) to my desk”.
The bill faces almost certain death in the Senate, as Republicans have expressed opposition to the measure, with Senate Minority Leader Mitch McConnell (R-KY) calling it “unnecessary”. Since the bill is not a budgetary issue, it would need to clear the two-thirds Filibuster threshold in the Senate, meaning that at least 10 Republican Senators would need to cross the aisle and vote for the bill to move forward.
Although Republicans have shown signs of bipartisanship throughout the year, with the GOP confirming almost all of Biden’s major cabinet nominees without much opposition and with a significant number of Republican senators supporting the Bipartisan Infrastructure Bill earlier this August, it is highly unlikely for Republicans to support such measures with both the House vote and the legislative death of the “For People Act” in the senate being good examples of the path that the John Lewis Act will likely follow.
The Voting Rights Act of 1965 and the Supreme Court
The voting rights Act of 1965, aimed directly against Jim Crow laws, required some states to “preclear” any type of voting legislation changes with the Department of Justice first, in order to ensure that no voter discrimination was being enacted in such state laws. Determining which states should be covered under the preclearance procedure was determined by Section 4 of the Voting Rights Act.
However, the Supreme Court ruled in 2013 that Section 4 of the Voting Rights Act was unconstitutional, arguing that while the measure made sense during the time it was drafted since it was aimed at ending the discriminatory system in the Jim Crow South, such policy is no longer up to date to the current state of voting rights across the nation.
Chief Justice Roberts argued then that the Voting Rights Act employed “exceptional measures to address an extraordinary problem” but that such conditions which justified the bill “no longer characterizes” how voting works in the states covered by the preclearance requirement of the bill.
The data (and common sense) gives Justice Roberts a point, with the number of African Americans registered in Jim Crow Mississippi was a meager 6.4%, while in 2004 76.1% of Blacks were registered to vote, the trend has continued to grow since then with the KFF reporting that 83.1% of African Americans are registered to vote in the Magnolia State, while only 68.1% of Black Californians were registered to vote in 2020.
What’s inside the House’s John Lewis Voting act
The legislation would redraft the qualifications of which states should submit voting legislation changes to the DOJ, with states which had over 15 “voting rights violations” over the last 25 years required to send those changes to the federal government for approval before being implemented in their respective states.
The legislation would also require preclearance for any state that wants to implement some specific voting legislation changes. Some of the “covered practices” under the John Lewis Act are, among other things, changes in the state’s “documentation or qualification to vote” (which is aimed to cover Voter ID laws), and legislation that “reduces multilingual voting materials”. If any state enacts any of these changes they should be first precleared by either the Department of Justice or the District of Columbia District Court before its implementation.
Hence, the bill would create two separate types of categories in which states would need preclearance from the Federal Government to enact state law: those states which had some “voting rights violations” over the last quarter of a century, and any electoral law change that is enumerated in the bill, regardless of the state’s history of violations on the Voting Rights Act of 1965.
Opponents of the bill have called it an overreach of federal authority over the state’s right to conduct their elections, with the Editorial Board of the Wall Street Journal publishing a piece against the bill by saying that “an extraordinary law designed for Selma in 1965 isn’t necessarily constitutional for Boise, Idaho, in 2021” and that it would make “sovereign states beg permission before changing their election laws”.
Although it is almost a certainty that H.R.4 will not survive the Senate, the bill does illustrate how politicized the issue of voting legislation has become, with Democrats accusing Republican lawmakers of imposing a “Jim Crow 2.0”, and some Republicans still casting doubts over the 2020 election results, almost a year after its conclusion.