Against Voter Suppression: The For the People Act

 David Hilfiker

In response to the voter suppression we examined in the last post, Democrats in the House of Representatives have passed and sent to the Senate the For the People Act.  In addition to two articles addressing voter suppression, the wide-ranging bill contains sections concerning voter security; campaign financing and transparency; a constitutional amendment to reverse the Citizens United decision; DC statehood; presidential, congressional and Supreme Court ethics; and presidential and vice-presidential tax-return transparency.  A Brennan Center report here examines the entire act in detail.

While the bill would certainly face legal challenges if it became law, there is a section of the act that justifies its own constitutionality by noting that the Supreme Court has affirmed that the Constitution gives Congress the power to protect the right to vote and regulate federal elections.

I’ll examine here the first two titles of the For the People Act that aim primarily to increase voter participation, in many cases, by prohibiting state or federal laws suppressing the vote.  

Much of the following is taken from the Brennan Center for Justice’s Annotated Guide to the act.

VOTER REGISTRATION — Some states have made voter registration difficult, especially for those without easy transportation.  The most common issue is that people have to register ahead of time, making two trips necessary.  

• The bill would mandate all states provide online registration.  Forty states already do, significantly increasing voter participation, especially during the pandemic. 
  
• Another provision mandates automatic registration for federal elections whenever a citizen provides appropriate information to the government via other avenues, for example, a driver’s license application, school ID, or application for government benefits.
• Traditionally voters have had to register before election day, sometimes far in advance, creating an unnecessary obstacle to voting.  This provision mandates that states allow same-day voter registration.
  

LIMITS ON PURGING VOTER ROLLS

• States regularly purge their voter rolls to remove those who have moved.  They usually do this by cross-checking databases, a process subject to high rates of error, especially if too few details are included to differentiate one voter from another.  The bill would require that a voter’s full name, date of birth, and the last four digits of their social security number be identical before purging.  
• The bill prohibits states from sending mail to a voter’s address on file and purging the voter just because the letter is returned undelivered.
• Any voter purged must be notified six months in advance and given the opportunity to challenge the decision.
  

PRESERVING AND PROTECTING VOTING RIGHTS

• States must restore voting rights to felons as soon as they have completed their time of incarceration and notify them of their restored rights.
• The bill prohibits the practice of targeting groups of voters with misinformation that is intended to interfere with voting — including the time, place, or manner of elections; public endorsements; and the rules governing eligibility and registration.
• The For the People Act commits Congress to restoring important provisions of the 1965 Voter Rights Act (VRA), perhaps the most important civil rights legislation in our history.  The vaunted success of the VRA was due in large part to the requirement that states and localities with histories of discriminatory voting practices secure federal government approval prior to making any changes in their voting rules.  Unfortunately, in 2013 the Supreme Court disabled this requirement, ruling it wasn’t necessary any more.  Immediately undercutting that rationale, many of the states that had previously required pre-clearance, began to pass a flurry of voter suppression laws. While the For the People Act wouldn’t in itself restore what’s left of the VRA, it does commit Congress to doing so.
• The bill would commit Congress to making findings of fact and conclusions of the law to secure voting rights for Native Americans and residents of US territories, such as Puerto Rico, Guam, and the Virgin Islands.
• While the Supreme Court has forbidden racial gerrymandering, it has, so far, permitted partisan gerrymandering, which has allowed states to create sometimes grotesquely shaped voting districts that give one party the ability to win a number of congressional seats disproportionate to their share of the population.  The bill would prevent partisan gerrymandering by mandating state-wide, independent commissions to draw congressional districts using uniform rules.
• The Census Bureau counts incarcerated people as living in the communities in which their prison is located, which entitles those communities to a larger share of legislative seats and government resources.  The For the People Act would require the Census Bureau to use the last residence before incarceration, giving those areas (often with a higher concentration of poverty) more political power.
  

While most provisions in the first two articles that concern voter suppression should seem uncontroversial to anyone who wishes to expand American voter participation (and recognizes that there is no voter fraud in the US), it has drawn no support from the Republican side of Congress.  This is not surprising since Republican-led voter suppression keeps millions of mostly Democrats disenfranchised.  Republicans claim that the bill is partisan since it will strengthen the Democrats and weaken the Republicans, which is certainly true.  Unfortunately, Republican hegemony depends at this time in our history on unconstitutional voter suppression.  The vote for the bill as written will divide the Senate along strictly partisan lines.

Titles III – XII contain myriad other proposals that will give reasonable excuses to those who object to it.  The ACLU, for instance, claims that provisions regulating campaign financing “dark money” tread on free speech.  So it might be reasonable to separate out the voting rights provisions from the rest of the bill and have a clean, up-or-down decision on whether democracy includes all of us.  

Current Senate filibuster rules require sixty votes for any non-budget matter, eg combatting voter suppression.  With the filibuster still in place, the bill will, therefore, require at least ten Republican votes, which is not going to happen.  

This brings up the question of removing the filibuster, which, interestingly enough, requires only a majority, so the Democrats could remove it without any Republican support.

Two Democrats, West Virginia’s Joe Manchin and Arizona’s Kyrsten Sinema, however, have pledged to keep the filibuster.  Whether one thinks doing away with the filibuster would be a good idea or not, without Manchin and Sinema’s votes, the For the People Act isn’t going anywhere.

I’m no longer surprised that the Republican Party can commandeer the votes of “senators of conscience” — like Mitt Romney, Susan Collins and Ben Sasse — to support voter suppression, but it does give us another marker for the depths to which the Party has fallen.

It's unlikely there will be a single Republican vote for the bill, which — along with the hundreds of mostly Republican states’ voter-suppression laws — reveals the Republican platform: to suppress the vote of as many Democratic voters as possible.

Where We Stand 3 — Voter Suppression

 David Hilfiker

Unable to win majorities in national elections and unwilling to change its policies to attract more voters in a country where demographics challenge its future, the Republican Party has turned to voter suppression as a primary tool for maintaining power.  When voter suppression determines political power, however, the United States is no longer a democracy.  When the Supreme Court refuses to move against voter suppression decisively and when the population is apathetic and uncertain of the value of a democracy, it is not at all clear how we can restore what has been lost.  

Americans tend to believe that wide-spread voter suppression died with Jim Crow.  In fact, it’s just become more subtle and in all of its manifestations remains a profoundly anti-democratic, usually racist, institution.  

Republican voter suppression has been much in the mainstream press recently, and I have written about it extensively (here, here, here, and other places).  I don’t want to be redundant in this post, but some points should be emphasized.  As is well known by now, there is no voter fraud in the United States except for the Republican effort to thwart the will of the majority.  Nevertheless, after four years of right-wing haranguing about “voter fraud,” a third of Americans (and two thirds of Republicans) cling to the belief that President Biden’s victory was not legitimate.  The Republican rationale now: to restore confidence in the electoral process … that they have themselves intentionally undermined.

Since the beginning of the year, Republican lawmakers, have introduced over 250 bills in 43 states* to limit  voter participation.  The Brennan Center for Justice reports the impact of some of these laws. 

1. Restrictions on Mail-In Voting: In  2020, vote-by-mail was responsible for a large increase in voter participation.  The following state, Republican-initiated bills would:

• limit vote-by-mail to those who can give a valid reason, eg members of the military,
• make it harder to obtain the mail-in ballot forms,
• increase barriers to returning a mail-in ballot, or
• require ballots to be mailed unnecessarily far in advance of the election.

2.  Stricter Voter ID laws for in-person voting by:

• requiring picture IDs (in more states),
  
• reducing the kinds of ID that are acceptable, eg prohibiting student IDs or out-of-state drivers’ licenses, or
• requiring proof of citizenship.
  

3. Slashing Voter Registration Opportunities:

• Not allowing mail-in registration,
• prohibiting same-day registration, and
• prohibiting online registration.

4. More Aggressive Voter Purging Practices — Using methods directly targeting the poor, persons of color, immigrants, the young and those who vote irregularly, states have purged voter rolls of people who have supposedly died, moved away or are no longer eligible to vote.  This is often-flawed process can incorrectly and permanently purge a person from the voter lists, often without even communicating the action to the purged voter.

The Supreme Court has, for the most part, been missing in action, allowing most voter-ID laws, most voter purges, and most instances of gerrymandering.  In 2013, the Supreme Court in Shelby County vs Holder effectively struck down the heart of the Voting Rights Act of 1965 that had required nine states and other smaller jurisdictions with a history of voter suppression to seek pre-clearance for changes to its voting regulations.  According to the Brennan Center for Justice,

[w]ithin 24 hours of the ruling, Texas announced that it would implement a strict photo ID law. Two other states, Mississippi and Alabama, also began to enforce photo ID laws that had previously been barred because of federal preclearance.

Since then, these states have introduced “hundreds of harsh measures making it harder to vote.”

OTHER FORMS OF VOTER SUPPRESSION

• Disenfranchisement: Felon disenfranchisement is a straightforward attempt by states to limit or outright prohibit voting by felons, often regardless of whether they have served their sentences.  Over the past several years, there has been a flurry of legislation and pending bills about felony disenfranchisement, some relaxing the restrictions, some tightening them.
• Gerrymandering: We don’t usually think of gerrymandering as a form of voter suppression.  In redrawing voting districts so that one group receives fewer representatives than they otherwise would, however, gerrymandering effectively violates the voting rights of that group.  

The Supreme Court has ruled that gerrymandering on the basis of race is unconstitutional.  However, it has also ruled that partisan gerrymandering is constitutional, even if the results violate the Constitution.  This bizarre, self-contradictory decision (5 - 4 along strict conservative/liberal lines) is extraordinary.  Since today’s Supreme Court is even more conservative (6-3), it seems likely to give states even more leeway to suppress the vote.

AND STILL MORE TINKERING WITH THE VOTE

Other measures go well beyond the above, including:

• tweaking Electoral College and judicial election rules for the benefit of Republicans,
• clamping down on citizen-led ballot initiatives, and
• outlawing private donations that provide resources for administering elections, which were crucial to the smooth November 2020 vote.

WHERE WE STAND

The practice of one-person-one-vote — sacred to our American values — now stands shredded and continually under even greater threat.  Not since Jim Crow have we seen such violation of our constitutional principles of equality before the law.  We have not arrived here by accident (here and here).  We watch as the leaders of the Republican Party progressively dismantle our democracy.

The Democrat House has passed HR1 into law and submitted an identical bill (S1) to the Senate that would significantly reverse the process.  Although many of its provisions have wide popular support, it is unlikely to pass the Senate where 60 votes will be required (unless the filibuster is removed).  

I will review HR1/S1 in the next post.

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* Conversely there have been 541 bills introduced to enhance voter participation.  These are qualitatively different from the restrictive laws, however, since they are only attempting to restore what has already been restricted.  The most representative democracy would be one in which 100% of voters participated.  The enhancement bills are simply attempts to move in that direction.