DESCRIPTION OF PENDING LEGISLATION -- DAVID NIR

JANUARY 2021

 

• Congress: With victories in Georgia's Senate runoffs, congressional Democrats now have the opportunity to pass the most important set of voting and election reforms since the historic Voting Rights Act was adopted in 1965. These reforms face a challenging path to passage given Democrats' narrow majorities, but their adoption is critical for preserving American democracy amid unprecedented attacks upon it by Republican extremists both in and outside Congress.

Chief among these proposals is the reintroduction of H.R. 1, the "For the People Act," which House Democrats passed in 2019 and would enact groundbreaking reforms by (1) removing barriers to expanding access to voting and securing the integrity of the vote; (2) establishing public financing in House elections to level the playing field; and (3) banning congressional gerrymandering by requiring that every state create a nonpartisan redistricting commission subject to nonpartisan redistricting criteria.

Democrats have also called for enacting a new Voting Rights Act, which the House passed in 2019 and subsequently named after the late Georgia Rep. John Lewis, a hero of the civil rights movement who died last year. Finally, House Speaker Nancy Pelosi has vowed to bring a bill to the floor to finally end the disenfranchisement of 700,000 Americans by making Washington, D.C. a state, which House Democrats also approved last year. We'll detail each of these major reforms below.

Pelosi has indicated that passing H.R. 1, symbolically named as the first bill of the session, will be a top priority for the new Congress. This bill would adopt the following reforms for federal elections:

  • Establish automatic voter registration at an array of state agencies;

  • Establish same-day voter registration;

  • Allow online voter registration;

  • Allow 16- and 17-year-olds to pre-register so they'll be on the rolls when they turn 18;

  • Allow state colleges and universities to serve as registration agencies;

  • Ban states from purging eligible voters' registration simply for infrequent voting;

  • Establish two weeks of in-person early voting, including availability on Sundays and outside of normal business hours;

  • Standardize hours within states for opening and closing polling places on Election Day, with exceptions to let cities set longer hours in municipal races;

  • Require paper ballots filled by hand or machines that use them as official records and let voters verify their choices;

  • Grant funds to states to upgrade their election security infrastructure;

  • Provide prepaid postage on mail ballots;

  • Allow voters to turn in their mail ballot in person if they choose;

  • Allow voters to track their absentee mail ballots;

  • Require states to establish nonpartisan redistricting commissions for congressional redistricting (likely not until 2030);

  • End prison gerrymandering by counting prisoners at their last address (rather than where they're incarcerated) for the purposes of redistricting;

  • End felony disenfranchisement for those on parole, probation, or post-sentence, and require such citizens to be supplied with registration forms and informed their voting rights have been restored;

  • Provide public financing for House campaigns in the form of matching small donations at a six-for-one rate;

  • Expand campaign finance disclosure requirements to mitigate Citizens United;

  • Ban corporations from spending for campaign purposes unless the corporation has established a process for determining the political will of its shareholders; and

  • Make it a crime to mislead voters with the intention of preventing them from voting.

The John Lewis Voting Rights Advancement Act, meanwhile, would restore the protections that the Supreme Court's conservatives eviscerated in an infamous 2013 decision. That ruling removed a requirement for a number of largely Southern states and localities with a pervasive history of racial discrimination to "preclear" all efforts to change voting laws and procedures with the Justice Department. The VRAA would establish new criteria for deciding which jurisdictions would fall under the preclearance requirement after the 2013 court ruling struck down the old formula.

Under the new setup, any state where officials have committed at least 15 voting rights violations over a 25-year period would be required to obtain preclearance for 10 years. If the state itself, rather than localities within the state, is responsible for the violations, it would take only 10 violations to place it under preclearance. In addition, any particular locality could individually be subjected to preclearance if it commits at least three violations.

Based on this formula, the VRAA would put 11 states back under preclearance: Alabama, California, Florida, Georgia, Louisiana, Mississippi, New York, North Carolina, South Carolina, Texas and Virginia. While most of these states are still in the South (and also under Republican control), the list also includes the two largest Democratic-leaning states in the country, California and New York.

Lastly, the bill to grant statehood to D.C. would shrink the federal District of Columbia down to a handful of important federal buildings surrounding the National Mall while admitting the rest of the district as a new state. All but one House Democrat (who is now no longer in Congress) voted for D.C. statehood last summer, and 46 of the 50 incoming members of the Democratic Senate caucus either sponsored last year's bill or have expressed public support, while the remaining four have yet to take a firm position.

While Democrats winning full control of Congress and the presidency makes it possible to pass the above reforms, their success is far from guaranteed. For starters, Democrats would need unanimous support in the Senate and near-unanimous backing in the House given that every Republican is likely to oppose these reforms.

The most important hurdle, however, is the legislative filibuster, and the fate of these reforms will depend on Senate Democrats either abolishing or curtailing it. Progressive activists have relaunched a movement to eliminate the filibuster entirely following the Georgia victories, while some experts have suggested that Democrats could carve out an exception for voting rights legislation. Either way, Democrats will need to address the filibuster in some fashion, since Senate Republicans have made it clear they will not provide the support necessary to reach a 60-vote supermajority on any of these measures.