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.