Where We’re Heading: Biden Administration Moves to Restore American Democracy

 

“The arc of the moral universe is long, but it bends toward justice.”
– Dr. Martin Luther King Jr.

 


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“There are, however, certain state-level decisions that do actually challenge fundamental rights and affect the basic character of liberal democracy. . . . The right to vote is unquestionably guaranteed in the Constitution’s Fifteenth Amendment. Voting rights are fundamental rights that need to be defended by the power of the national government”.

Francis Fukuyama

 

More States Dropping Barriers to Voting

Voting Laws Roundup: Today is Monday, July 15. We are tracking 1,787 bills so far this session across 44 states and D.C., with 312 bills that restrict voter access or election administration and 890 bills that improve voter access or election administration. The rest are neutral, mixed, or unclear in their impact.

The Bad News: The U.S. House of Representatives passed a bill that would impose a burdensome documentary proof of citizenship requirement on voters nationwide. If enacted, the bill could disenfranchise millions of American citizens. A federal appeals court decision will make it harder for Tennessee citizens with past felony convictions to register to vote. The Georgia secretary of state announced plans to search for noncitizens on the state’s voter rolls using unreliable data, while the State Election Board advanced rules that could interfere with the certification of results and impose new burdens on election officials.

The Good News: The governor of Hawaii signed a new law directing the state to join ERIC, the interstate compact to keep voter rolls accurate. New Hampshire enacted a law guaranteeing access to accessible voting machines in all elections. Two Wisconsin court decisions will improve access to mail voting.

 

“A new and better California Voting Rights Act”

This editorial by Steven Hill (Democracy SOS) reflects on the implications of the California Supreme Court’s recent decision in Pico Neighborhood Association v City of Santa Monica–the the first California Voting Rights Act case to reach the state’s Supreme Court in over 20 years. Hill argues the decision is a beacon “for multi-racial, multi-partisan representation . . . if voting rights advocates are bold enough to seize the opportunity.” He explains how:

“The ruling has created an enormous opportunity in California for using proportional ranked choice voting and cumulative voting to settle voting rights cases in a way that opens new opportunities for minority communities, but also for working class and other under-represented constituencies to elect their candidates of choice.”

 

The Markup
A Weekly Election Legislation Update
April 22, 2024

Today is Monday, April 22. We are tracking 1,722 bills so far this session across 44 states and D.C., with 303 bills that restrict voter access or election administration and 861 bills that improve voter access or election administration. The rest are neutral, mixed, or unclear in their impact.

The Bad News: The Kentucky legislature overrode the governor’s veto to enact a law that will require the state to leave ERIC.

The Good News: The governor of Nebraska allowed a bill to become law that restores voting rights to citizens with past felony convictions upon completion of their sentence. The Kentucky legislature sent a bill to the governor’s desk that, if signed, will expand access to in-person voting prior to Election Day and voting for eligible citizens who are in jail. The governor of Wyoming rejected a proposal that would have required citizens to produce documentary proof of residency in the state in order to register to vote. The Colorado Senate passed a bill that would guarantee eligible citizens are able to vote while in jail. The U.S. Supreme Court turned away a challenge to Washington‘s state Voting Rights Act.

 

The Briefing: Voting rights are expanding in blue states, contracting in red

Brennan Center for Justice

February 28, 2023

“With newfound powers, statehouse Democrats race to expand voting rights”

Minnesota is about to bring 55,000 excluded voters back into the democratic fold. State law currently bars people on parole from voting. The legislature last week passed a bill to restore voting rights to people with criminal convictions once they have served their prison sentence. Gov. Tim Walz says he will sign it into law. It’s a real step forward for inclusion in Minnesota, where 6 percent of Black people and 9 percent of Native American people are currently unable to vote because of ongoing parole periods.
The move highlights the widening gulf between red- and blue-led states on voting rights. Last week, the Brennan Center published the most recent edition of our Voting Laws Roundup, which catalogs voting bills introduced in state legislatures nationwide. The report shows a house rapidly dividing against itself.
States with unified Democratic control overall are moving to make voting more inclusive and convenient. This trend is most visible where Democrats recently won full control over state government — where reforms had previously been stalled. Minnesota is considering 17 bills to expand voting access. Potential reforms include automatic voter registration, a permanent absentee voter list, and expanded access to voting materials in non-English languages. That’s a pretty good menu for a better democracy.
Democrats also won control of Michigan government in the 2022 elections, and officials are working on a major effort to expand and buttress the state’s democracy. Secretary of State Jocelyn Benson has already taken steps to protect election workers and keep guns away from polling places. She has signaled a plan to introduce a Voting Rights Act for the state, including non-English-language voting materials, improved polling access for people with disabilities, and prohibitions on various forms of voter suppression.
Things look very different, though, in states dominated by Republicans. At least 150 restrictive voting bills had been introduced in 32 states by January 25. These are just proposals, of course. But bad laws start out as bad bills.
Many of those bills seek to curb mail voting, while a large number would tighten identification requirements. Nebraska voters passed a ballot measure urging stricter ID rules, and the state’s legislators have introduced four separate such bills. (The problem, as the Brennan Center has made clear, is not an ID requirement per se — we have no problem with that. It’s requiring identification that too many people don’t have.)
Texas legislators did not meet in 2022. This year they have already introduced five election interference bills — changes that would allow state officials to meddle in the election process by, for example, directing new resources to pursue the prosecution of election officials for ordinary conduct, establishing biased election review processes, or prohibiting the use of machines to count ballots for any election.
It’s a tale of two countries. Once, there was an expectation of a universal set of rights, nationally enforced by Congress and the Supreme Court. But last year, Congress proved unable to pass a voting rights bill even with a majority in the Senate, thanks to the filibuster. If Congress can’t protect voting rights, and courts won’t, then states have free rein to do their worst.
Of course, it’s not only a regional divide, but a partisan one. That’s not unprecedented: Expanding voting rights has often been a partisan issue in the United States. When the Democrats moved to drop the property requirement for voting in the 1820s, they did so in the face of stiff Whig opposition. Black men won the right to vote after the Civil War without a single Democratic vote in favor. In 1992, President George H.W. Bush vetoed the “motor voter” bill only to see his successor, Bill Clinton, sign it into law less than a year later.
Not unprecedented, but not healthy, either. Congress came within a couple of votes last year of setting baseline nationwide standards for voting, which would have rendered many of the restrictive voting laws currently pending in both red and blue states patently illegal. Support for voting rights was more bipartisan within living memory. The last time the Voting Rights Act was reauthorized in 2006, it passed the Senate with 98 votes, and President George W. Bush proudly signed it into law. Just last December, a bipartisan bill clarified procedures under the Electoral Count Act. It’s not too late. Congress has the power — indeed, the constitutional responsibility — to establish one American democracy under one set of inclusive rules.

CNN:

After strong electoral results in the midterm elections, Democrats in some key states are moving quickly this year on voting rights – pushing ambitious plans to expand access to the ballot ahead of the 2024 presidential election.

In the presidential swing state of Michigan – where Democrats have gained the governorship and both legislative chambers for the first time in roughly four decades – Democratic Secretary of State Jocelyn Benson and a group of legislators recently announced a package of voting-related priorities. They range from criminalizing the harassment of election workers to carrying out a voter-approved expansion of early voting.

Newly empowered Democrats in Minnesota, meanwhile, are advancing a suite of election changes through the legislature that include instituting automatic voter registration and restoring voting rights to people convicted of felonies.

And in Arizona – a battleground state where Democrats flipped key statewide offices – the new Democratic Attorney General Kris Mayes recently announced plans to shift the focus of an “election integrity unit” established by her Republican predecessor from investigating voter fraud to “protecting voter access” and fighting voter suppression.

 

“In honor of Juneteenth, New York enacts John Lewis Voting Rights Act to combat suppression and discrimination”

NYDN:

New York celebrated Juneteenth and paid tribute to the late civil rights icon and congressman John Lewis on Monday by enacting sweeping new voter protections.

The John R. Lewis Voting Rights Act of New York, signed into law by Gov. Hochul, will make it easier to sue over discriminatory voting policies and require areas with a history of civil right violations to get approval before changing election rules.

 

“New York on brink of major voting rights act”

Democrats in Albany are expected to pass major election reforms. The package is expected to also “create a so-called pre-clearance program that requires local governments with histories of discrimination against minority voters to prove that any changes they make to voting laws or election procedures would not harm voters of color before taking effect.” New York boasts one of the least hospitable election regimes, designed by party machines to repressed turnout.

The One State That Could Actually Expand Voting Rights

Connecticut is one of only six states that doesn’t permit early voting either in-person or by mailing in a ballot. But a ballot initiative could change that later this year.
Scott Bixby White House ReporterUpdated Feb. 18, 2022 

 

How to guarantee the right to cast a ballot?
Election Law Blog
By NED FOLEY, January 12, 2022
I have seen a lot a skepticism lately about relying on courts to protect the equal right of eligible voters to participate in an election by casting a ballot and having it counted accurately. But unless Congress is going to exercise its constitutional power to create an entirely new federal bureau of election administration to run congressional elections (and states would willingly let this new federal bureau administer other elections, like gubernatorial and the popular vote to appoint presidential electors), what’s the alternative? 
How can we tell if every eligible voter who wants to cast a ballot is meaningfully able to do so in a specific election (like the upcoming midterms)–and thus is not being denied their fundamental right to vote? First, assuming a state does not have same-day registration, the voter must have an adequate opportunity to register in advance. While same-day registration certainly makes access to the ballot easier, I would not argue that the absence of same-day registration is a denial of the right to vote, as long as the state provides its eligible citizens with a genuine opportunity to register in advance. If state officials failed to do that, in violation of existing federal law, it would be necessary to turn to the courts to enforce that right. (And even if federal law were to require same-day registration nationwide, it would be necessary to rely on federal-court enforcement of that right in the event of noncompliance, deliberate or otherwise, by state and local election officials.) Read More
Assuming eligible citizens have a meaningful opportunity to register in advance, what about their opportunity to cast a ballot? The essential role of provisional ballots, as required by HAVA, should not be overlooked in this respect. All voters who believe themselves to be registered have an existing federal-law right to cast a provisional ballot. I worry about long lines at the polls as a practical obstacle to voters wishing to cast a ballot, including a provisional one if necessary, but voters who want to make sure they are not denied their right to vote must insist that they cast at least a provisional ballot and refuse to leave their polling place without being able to do so. If state and local officials fail to comply with this existing federal-law obligation to give a provisional ballot to all voters who request one, it would be necessary to go to court seeking an emergency TRO to make sure these provisional ballots get into voters hands while they remain waiting in line. Compliance with the existing federal-law obligation to give voters provisional ballots is especially important in a presidential election for this reason: if voters who want to cast a ballot but who are denied the opportunity to cast one and leave their polling places without casting one, there is no possibility of a do-over after Election Day has passed, at least not under existing federal law. Why? Because if the claim is that a state’s popular vote in a presidential election is fundamentally defective because there were a group of voters (say, for example, many in Atlanta) who were denied their right to cast a provisional ballot, then the popular-vote election for the purpose of appointing the state’s electors will have “failed to make a choice on the day prescribed by law” under 3 U.S.C. 2, thereby giving the state’s legislature the right to choose an alternative method of appointing electors (including direct appointment by the legislature itself).  
Thus, as we contemplate the possibility of partisan state and local election officials (along with partisan state legislatures) attempting to engineer electoral outcomes in contravention to free and fair elections, including by denying eligible citizens the right to cast a ballot, we ultimately must rely on courts to uphold the law that guarantees the right to cast a ballot. Above all, this includes the key provisions of the federal Help America Vote Act that insist that no voter be turned away from the polls without having a chance to cast a provisional ballot, which must eventually be counted if indeed the voter was registered and eligible to participate in the election as the voter believed. I’m afraid that, as we think about how to safeguard democracy from the very real dangers that exist, we are neglecting the need to remain vigilant about the judicial protection, if necessary, of the essential right to cast a provisional ballot. 

As Federal Options Close, Remember States

By Tabatha Abu El-Haj

Election Law Blog

With a Supreme Court that is borderline hostile to voting rights and Congress in perpetual gridlock, it is no wonder voters and their advocates are despairing. Still, fade out the polarization noise, and the fact of the matter is that 25 states have enacted legislation to expand voter access and voting rights in 2021, including Republican-run, North Dakota. Virginia even adopted its own state-level Voting Rights Act, creating a review process to prevent local jurisdictions from implementing discriminatory voting practices.

In several states, including New York, Nevada, Kentucky, Louisiana, Indiana, and Oklahoma, compromise legislation limiting the ease of voting in some respects and relaxing it in others was adopted. Negotiations between Pennsylvania’s Republican legislature and its Democratic Governor over access to the ballot opened last week when the legislature announced proposed legislation. The Brennan Center’s comprehensive accounting of states that have restricted voting rights in 2021 is available here.

States across the country are dropping barriers to voting, widening a stark geographic divide in ballot access 

By  Elise Viebeck

June 23, 2021

More than half of U.S. states have lowered some barriers to voting since the 2020 election, making permanent practices that helped produce record voter turnout during the coronavirus pandemic — a striking countertrend to the passage of new restrictions in key Republican-controlled states this year.

The newly enacted laws in states from Vermont to California expand access to the voting process on a number of fronts, such as offering more early and mail voting options, protecting mail ballots from being improperly rejected and making it easier to register to vote.

Some states restored voting rights to people with past felony convictions or expanded options for voters with disabilities, both long-standing priorities among advocates. And in Virginia, a new law requires localities to receive preapproval or feedback on voting changes as a shield against racial discrimination, a first for states after the Supreme Court struck down a key part of the federal Voting Rights Act in 2013.

Read More

The push to make voting easier around the country comes even as Republicans have embraced voting restrictions in GOP-controlled states such as Georgia, Florida and Iowa. Some states have passed laws that make some elements of voting easier and others harder, leading to mixed effects.

But the overall result is a deepening divide in ballot access depending on where voters live — one shaped by how lawmakers have reacted to both the pandemic and former president Donald Trump’s false claims that the 2020 election was tainted by massive fraud.

“There’s a fault line that’s developing between states working to strengthen our democracy and states actively restricting it,” said Liz Avore, vice president for law and policy with thenonpartisan Voting Rights Lab, which tracks developments in state election law and analyzed this year’s legislative action in a report last week. “It is stark when you look at the map … That division is really remarkable.”

The trend is not limited to blue states, though they have led the charge. Indiana and Kentucky made several significant changes this year, including expanding the availability of ballot drop-off locations and establishing processes for voters to correct certain errors that would otherwise invalidate their mail ballots. At least four red states created systems for voters to track their ballots through the mail. Louisiana eliminated hurdles for people with past felony convictions as they register to vote. Montana made voting more accessible for people with disabilities, even as it ended same-day voter registration.

Kentucky Secretary of State Michael Adams, a Republican who fought for his state’s policy changes, said the GOP needs to “stop being scared of voters.”

“Let them vote, and go out and make the case,” he said in an interview, adding: “I want Republicans to succeed. I think it’s an unforced error to shoot themselves in the foot in these states by shrinking access. You don’t need to do that.”

Seventy-one new laws easing voting rules are poised to benefit 63 million eligible voters across 28 states, or about one-quarter of the U.S. voting population, according to the Voting Rights Lab report, which tracked policy changes as of June 13.

Thirty-one new laws in 18 states create more barriers to the ballot box, affecting 36 million eligible voters, or 15 percent of the voting population, the report stated.

Legislative debates over restrictions are ongoing in key states such as Texas and Pennsylvania, leaving open the possibility that new limitations affecting millions more voters will still be enacted before the end of the year.

The uncertainty is heightened by a standoff on Capitol Hill over Democratic-backed legislation to protect voting rights. On Tuesday, Senate Republicans blocked a test vote that would have cleared the way to start debate on the bill, known as the For the People Act, which Senate Minority Leader Mitch McConnell (R-Ky.) vowed to fight.

“States are stepping up in the absence of or while waiting for congressional action,” said Eliza Sweren-Becker, voting rights and elections counsel at the nonpartisan Brennan Center for Justice, adding: “Some of this is really a call to action to Washington.”

Absent federal standards, voters’ experiences will vary widely from state to state in details large and small — from the length of lines on Election Day to the process for registering to vote or casting a mail ballot. Starting this year, the contrast is poised to become more dramatic as the wave of new election laws begins to take effect.

“Voting rights really shouldn’t be impacted by boundary lines that are drawn arbitrarily for states,” said Gov. Steve Sisolak (D) of Nevada, which enacted universal mail voting this year. “It should be the same for everybody. … It shouldn’t be dependent on who is in power and who is not and who is passing the laws.”

Legacy of the pandemic

The new laws that ease the voting process build on emergency actions taken to protect voters during the pandemic, when public health measures barred many people from leaving home or gathering in public places.

Before 2020, only five states automatically sent mail ballots to all voters, a figure that jumped to nine — plus the District of Columbia — for November’s general election. Roughly three dozen states offered no-excuse absentee voting or proactively mailed absentee ballot applications to voters, leading to a spike in the number of Americans who cast ballots by mail.

Under laws passed this year, Vermont and Nevada will mail ballots to active voters for general elections and all elections, respectively. Maryland has created a permanent absentee voter list, which allows voters to sign up to receive mail ballots for every election, and Connecticut and New York are moving toward amending their state constitutions to allow voters to cast mail ballots without an excuse.

So far, nearly two dozen states have taken steps to improve the process of mail voting — agreeing to pay for return postage for ballots, expand the use of drop boxes or give election administrators more time to process returned mail ballots before Election Day, for example.

These moves reflect the popularity of the more flexible voting options during the pandemic and election administrators’ success in implementing them securely for November’s contests.

“We started getting input pretty early from our residents, saying, ‘This is great — why can’t we do this all the time?’” Sisolak said in an interview.

In 2020, active voters in the state received ballots in the mail for both the June primary and the general election. Sisolak noted that Nevada Secretary of State Barbara Cegavske, a Republican, found no evidence to support GOP claims of widespread voter fraud in the state.

“You’re always going to get the naysayers and the haters that are going to complain about the process, but it proved very effective and very secure so I’m happy about it,” he said. The majority-Democratic state legislature approved the new system with Republicans unified in opposition.

Nevada Democratic Gov. Steve Sisolak said that when the state allowed flexible voting measures in 2020, “we started getting input pretty early from our residents, saying, ‘This is great — why can’t we do this all the time?’ ” (John Locher/AP)

Assembly Minority Leader Robin Titus (R) argued the measure would “further degrade the fragile civic trust” held by Nevadans.

“Whether it was one fraudulent vote or a thousand, it does not matter if the trust in the system has been severely questioned,” Titus said in remarks on the floor before the final vote, according to the Las Vegas Review-Journal. “And I am concerned that this bill just furthers that distrust of the system.”

Trump has repeatedly and falsely attacked universal mail voting as insecure, a view that has gained traction in some — but not all — parts of the GOP.

In Vermont, the state’s new universal ballot-mailing program was signed into law this month by Republican Gov. Phil Scott after receiving broad support across the political spectrum in the state legislature. It included a process to fix voter errors on mail ballots, which was not previously available in the state.

After the state mailed ballots to active registered voters during the 2020 general election, GOP legislators were “pleasantly surprised that it worked so well,” said Secretary of State Jim Condos (D). He said that one former skeptic contacted him after the election to “tell me that he had his doubts about vote-by-mail, but he actually thinks it helped him get more voters.”

“Here in Vermont, we have the decency to reach across the aisle and work amongst our legislators and our governor to reach good language,” Condos said. “This is the largest [expansion] of Vermont voter access in decades, and we’re really, really pleased.”

Bipartisan agreement was also critical in Kentucky, where Adams lobbied for a wide-ranging bill to create an early voting period, allow the use of drop boxes and add a process to remedy certain errors on mail ballots, among other elements. (The final law also allows counties to combine precincts and establish centralized “voting centers,” a provision that some critics say could limit voter access at times.)

During the 2020 general election, the state allowed anyone concerned about contracting covid-19 to request an absentee ballot, installed drop boxes for returning mail ballots and offered a three-week early voting period.

“Even before the election was fully over, I was already inclined to make that and other things fully permanent. I asked my staff: ‘Y’all think I need to have my head examined? Because I think we should try to keep this,’ ” Adams said.

Building consensus for the bill was not easy, he added. Adams said he relied on several points to make the case to fellow Republicans: that rural voters had embraced mail ballots, offering a potential upside for the GOP; that offering early in-person voting could reduce the risk of vote-buying schemes on Election Day; and that the earliest American presidential elections took place over the course of several days, making his proposal historically authentic.

Kentucky Secretary of State Michael Adams said fellow Republicans “keep committing these unforced errors” by passing voting restrictions. (Timothy D. Easley/AP)

The bipartisan measure was signed into law by Gov. Andy Beshear, a Democrat, in April.

“It wasn’t a Republican bill or Democrat bill. This was put together by election officials … That’s a big difference from what you’re seeing everywhere else in the country,” Adams said.

He took issue with fellow Republicans who have sought to restrict voting access around the country, calling it bad for voters and bad for the GOP.

“They keep committing these unforced errors,” he said, offering the example of trying to restrict the use of drop boxes. “It’s absolutely appropriate to enhance security, but you can’t have a blind spot on access.”

Adams said a Georgia bill that would have banned early voting on Sundays, when many Black people have traditionally cast ballots in the state, was “racially insensitive.” The proposal drew a flurry of criticism and was not included in the final legislation. A similar Sunday morning voting ban was proposed by Texas Republicans as part of a bill that did not advance because Democratic lawmakers staged a walkout.

“Even if they are smart enough not to pass a bad policy like that, the optics reflect badly on all of us,” Adams said.

Blue state action

Election officials have repeatedly pointed to November’s record voter turnout as evidence that the pandemic-era rules should remain in place. More than 159 million people voted, the highest turnout in a century.

Chris Piper, the commissioner of elections in Virginia, praised the expansion of mail voting there in 2020 as a “godsend.”

“The proof is in the pudding,” he said, noting that turnout among registered voters was the highest it had been in close to 30 years. “It’s pretty significant.”

Since then, the state has passed a bevy of election reforms, including a first-of-its kind state voting rights act, which requires localities to receive public feedback or get approval for voting changes from the attorney general’s office as a safeguard against racial discrimination.

Republicans opposed the measure, with some arguing it would unfairly burden local governments.

Voters wait to cast their ballots on Nov. 3 in the Bronx borough of New York City. (David Dee Delgado/Getty Images)

Some blue states are using momentum from the 2020 cycle to replace what critics said were outdated voting restrictions. In the Northeast, several traditionally Democratic states maintained limits on early and mail voting that were loosened during the pandemic and are now receiving fresh scrutiny.

In New York, Gov. Andrew M. Cuomo (D) has enacted four new election laws this year and is expected to sign at least eight more, as Democratic legislators double-down on efforts they began in 2019 to improve voter experience in the state.

“I like to say we’re taking ourselves from among the worst in the nation to among the first in the nation,” said deputy Senate Majority Leader Michael Gianaris, a Democrat who represents western Queens. “We’re tackling all the big initiatives that a lot of other states have been using for a while,” such as expanded early voting and automatic voter registration.

Recently, the New York legislature passed bills to increase the number of early voting sites and to mandate that returned mail votes are processed earlier. Both seek to address areas of election administration where New York has been criticized — for long lines to vote and long waits for election results.

“We feel a special obligation to continue down this road given that we’re noticing other parts of the country moving in the opposite direction,” Gianaris said. “ … It shouldn’t have to be said, but the more eligible voters vote, the better it is for our democracy. The idea that not everyone agrees with that is shocking.”

 

Presidential Support for National Voting Rights Legislation

 

The Biden Interview: The President Talks About the Supreme Court, Threats to Democracy and Trump’s Vow to Exact Retribution

“Biden Issues a Blistering Attack on Trump”

NYT:

President Biden issued a broad and blistering attack against former President Donald J. Trump on Thursday, accusing his predecessor and would-be successor of inciting violence, seeking unfettered power and plotting to undermine the Constitution if he returns to office in next year’s elections.

In his most direct condemnation of his leading Republican challenger in many months, Mr. Biden portrayed Mr. Trump as a budding autocrat with no fidelity to the tenets of American democracy and who is motivated by hatred and a desire for retribution. While he usually avoids referring to Mr. Trump by name, Mr. Biden this time held nothing back as he offered a dire warning about the consequences of a new Trump term.

“This is a dangerous notion, this president is above the law, no limits on power,” Mr. Biden said in a speech in Tempe, Ariz. “Trump says the Constitution gave him, quote, the right to do whatever he wants as president, end of quote. I never heard a president say that in jest. Not guided by the Constitution or by common service and decency toward our fellow Americans but by vengeance and vindictiveness.”

Mr. Biden cited recent comments by Mr. Trump vowing “retribution” against his foes, accusing NBC News of “treason” and suggesting that the outgoing chairman of the Joint Chiefs of Staff, Gen. Mark A. Milley, might deserve to be put to death. The president also decried plans being developed by Mr. Trump’s allies to erode the independence of major agencies, wipe out much of the top ranks of civil service and make senior government officials personally loyal to him.

“Seizing power, concentrating power, attempting to abuse power, purging and packing key institutions, spewing conspiracy theories, spreading lies for profit and power to divide America in every way, inciting violence against those who risk their lives to keep Americans safe, weaponizing against the very soul of who we are as Americans,” Mr. Biden said. “This MAGA threat is a threat to the brick and mortar of our democratic institutions. It’s also a threat to the character of our nation.”

The gloves-off assault on Mr. Trump represented a marked shift for Mr. Biden, who has spent months mostly talking up the benefits of his policies while ignoring the race to choose a Republican nominee to challenge him. But repeated speeches claiming credit for “Bidenomics” have not moved his anemic approval ratings, as many voters tell pollsters they worry about the 80-year-old president’s age.

Letters from an America, Heather Cox Richardson

May 16, 2023

On Saturday, May 13th, President Joe Biden spoke to the graduating class at Howard University, a historically Black university in Washington, D.C. In his speech about “excellence, leadership, and truth and service,” Biden singled out white supremacy “as the most dangerous terrorist threat to our homeland.”

Biden called for Americans to reject political extremism and violence, and to protect fundamental rights and freedoms for women to choose and for transgender children to be free. He called for affordable healthcare and housing and the right to raise your family and retire with dignity. He urged the graduates to “stand with leaders of your generation who give voice to the people, demanding action on gun violence,” and to stand “against books being banned and Black history being erased…. To stand up for the best in us.”

While Biden based his remarks on former president Trump’s declaration after the August 2017 Unite the Right Rally that “there are very fine people on both sides,” there were plenty of examples from just this week that he could have used.

Last night, Hunter Walker of Talking Points Memo broke the story that the digital director for right-wing representative Paul Gosar (R-AZ) appears to be Wade Searle, a devoted follower of white supremacist leader Nick Fuentes. Fuentes has openly embraced Nazism and Russian president Vladimir Putin’s authoritarianism, and he is one of those to whom the alt-right Groypers look up.

Although Fuentes calls the Groypers “Christian conservatives,” historian of the far right in the U.S. Nicole Hemmer told Walker: “The Groypers are essentially the equivalent of neo-Nazis…. They are attached to violent events like Jan. 6. Nick Fuentes, as sort of the organizer of the Groypers, expresses Holocaust denialism, white supremacy, white nationalism, pretty strong anti-women bigotry, he calls for a kind of return to Twelfth Century Catholicism. They’re an extremist group that is OK with violence.”

Walker has also identified an intern in Gosar’s office as another Fuentes follower.

A February study by the Public Religion Research Institute, a nonprofit, nonpartisan organization that conducts independent research on religion, culture, and public policy, found that the so-called Christian nationalism at the heart of those like Fuentes is closely linked with a willingness to commit violence to make the U.S. a white Christian nation. The PRRI poll showed that nearly 20% of those who sympathize with Christian nationalism agreed they were “willing to fight” to take the nation back to what they incorrectly believe it always was.

 

Letters from an America, Heather Cox Smith

March 5, 2023

President Joe Biden spoke this afternoon in Selma, Alabama, to commemorate the 58th anniversary of Bloody Sunday, when law enforcement officers tried to beat into silence Black Americans marching for their right to have a say in the government under which they lived. Standing at the Edmund Pettus Bridge, which had been named for a Confederate brigadier general, Grand Dragon of the Alabama Ku Klux Klan, and U.S. senator who stood against Black rights, Biden said: “On this bridge, blood was given to help ‘redeem the soul of America.’”

The story of March 7, 1965, commemorated today in Selma, is the story of Americans determined to bring to life the principle articulated in the Declaration of Independence that a government’s claim to authority comes from the consent of the governed. It is also a story of how hard local authorities, entrenched in power and backed by angry white voters, worked to make the hurdles of that process insurmountable.

In the 1960s, despite the fact Black Americans outnumbered white Americans among the 29,500 people who lived in Selma, Alabama, the city’s voting rolls were 99% white. So, in 1963, local Black organizers launched a voter registration drive.

It was hard going. White Selma residents had no intention of permitting their Black neighbors to have a say in their government. Indeed, white southerners in general were taking a stand against the equal right of Black Americans to vote. During the 1964 Freedom Summer voter registration drive in neighboring Mississippi, Ku Klux Klan members worked with local law enforcement officers to murder three voting rights organizers and dispose of their bodies.

To try to hold back the white supremacists, Congress passed the 1964 Civil Rights Act, designed in part to make it possible for Black Americans to register to vote. In Selma, a judge stopped voter registration meetings by prohibiting public gatherings of more than two people.

To call attention to the crisis in her city, voting rights activist Amelia Boynton traveled to Birmingham to invite the Reverend Dr. Martin Luther King, Jr., to the city. King had become a household name after the 1963 March on Washington where he delivered the “I Have a Dream” speech, and his presence would bring national attention to Selma’s struggle.

King and other prominent Black leaders arrived in January 1965, and for seven weeks, Black residents made a new push to register to vote. County Sheriff James Clark arrested almost 2,000 of them on a variety of charges, including contempt of court and parading without a permit. A federal court ordered Clark not to interfere with orderly registration, so he forced Black applicants to stand in line for hours before taking a “literacy” test. Not a single person passed.

Then, on February 18, white police officers, including local police, sheriff’s deputies, and Alabama state troopers, beat and shot an unarmed man, 26-year-old Jimmie Lee Jackson, who was marching for voting rights at a demonstration in his hometown of Marion, Alabama, about 25 miles northwest of Selma. Jackson had run into a restaurant for shelter along with his mother when the police started rioting, but they chased him and shot him in the restaurant’s kitchen.

Jackson died eight days later, on February 26. Black leaders in Selma decided to defuse the community’s anger by planning a long march—54 miles—from Selma to the state capitol at Montgomery to draw attention to the murder and voter suppression.

On March 7, 1965, the marchers set out. As they crossed the Edmund Pettus Bridge, state troopers and other law enforcement officers met the unarmed marchers with billy clubs, bullwhips, and tear gas. They fractured the skull of young activist John Lewis and beat Amelia Boynton unconscious. A newspaper photograph of the 54-year-old Boynton, seemingly dead in the arms of another marcher, illustrated the depravity of those determined to stop Black voting.

Images of “Bloody Sunday” on the national news mesmerized the nation, and supporters began to converge on Selma. King, who had been in Atlanta when the marchers first set off, returned to the fray.

Two days later, the marchers set out again. Once again, the troopers and police met them at the end of the Edmund Pettus Bridge, but this time, King led the marchers in prayer and then took them back to Selma. That night, a white mob beat to death a Unitarian Universalist minister, James Reeb, who had come from Massachusetts to join the marchers.

On March 15, President Lyndon B. Johnson addressed a nationally televised joint session of Congress to ask for the passage of a national voting rights act. “Their cause must be our cause too,” he said. “[A]ll of us…must overcome the crippling legacy of bigotry and injustice. And we shall overcome.” Two days later, he submitted to Congress proposed voting rights legislation.

The marchers were determined to complete their trip to Montgomery, and when Alabama’s governor, George Wallace, refused to protect them, President Johnson stepped in. When the marchers set off for a third time on March 21, 1,900 members of the nationalized Alabama National Guard, FBI agents, and federal marshals protected them. Covering about ten miles a day, they camped in the yards of well-wishers until they arrived at the Alabama state capitol on March 25. Their ranks had grown as they walked until they numbered about 25,000 people.

On the steps of the capitol, speaking under a Confederate flag, Dr. King said: “The end we seek is a society at peace with itself, a society that can live with its conscience. And that will be a day not of the white man, not of the black man. That will be the day of man as man.”

That night, Viola Liuzzo, a 39-year-old mother of five who had arrived from Michigan to help after Bloody Sunday, was murdered by four Ku Klux Klan members who tailed her as she ferried demonstrators out of the city.

On August 6, Dr. King and Mrs. Boynton were guests of honor as President Johnson signed the Voting Rights Act of 1965. Johnson recalled “the outrage of Selma” when he said, “This right to vote is the basic right without which all others are meaningless. It gives people, people as individuals, control over their own destinies.”

The Voting Rights Act authorized federal supervision of voter registration in districts where African Americans were historically underrepresented. Johnson promised that the government would strike down “regulations, or laws, or tests to deny the right to vote.” He called the right to vote “the most powerful instrument ever devised by man for breaking down injustice and destroying the terrible walls which imprison men because they are different from other men,” and pledged that “we will not delay, or we will not hesitate, or we will not turn aside until Americans of every race and color and origin in this country have the same right as all others to share in the process of democracy.”

But less than 50 years later, in 2013, the Supreme Court gutted the Voting Rights Act. The Shelby County v. Holder decision opened the door, once again, for voter suppression. Since then, states have made it harder to vote. In the wake of the 2020 election, in which voters handed control of the government to Democrats, Republican-dominated legislatures in at least 19 states passed 34 laws restrict­ing access to voting. In July 2021, in the Brnovich v. Democratic National Committee decision, the Supreme Court ruled that election laws that disproportionately affected minority voters were not unconstitutional so long as they were not intended to be racially discriminatory.

When the Democrats took power in 2021, they vowed to strengthen voting rights. They immediately introduced the For the People Act, which expanded voting rights, limited the influence of money in politics, banned partisan gerrymandering, and created new ethics rules for federal officeholders. Republicans in the Senate blocked the measure with a filibuster. Democrats then introduced the John R. Lewis Voting Rights Advancement Act, which would have restored portions of the Voting Rights Act, and the Freedom to Vote Act, a lighter version of the For the People Act. Republicans blocked both of those acts, too.

And so, in 2023, the right to vote is increasingly precarious.

As Biden told marchers today, “The right to vote—the right to vote and to have your vote counted is the threshold of democracy and liberty. With it, anything is possible. Without it—without that right, nothing is possible. And this fundamental right remains under assault.”

 

A Year After a Fiery Voting Rights Speech, Biden Delivers a More Muted Address

On Martin Luther King Jr.’s birthday, the president assured an audience at Ebenezer Baptist Church that its side in the struggle would, indeed, overcome someday.

“Progress is never easy,” President Biden said at Ebenezer Baptist Church in Atlanta on Sunday.

President Biden Speaks at Ebenezer Church in Atlanta

President Biden spoke at Ebenezer Baptist Church in Atlanta one day before Martin Luther King Jr. Day. In his remarks, the president spoke of democracy and voting rights, drawing parallels between his administration’s domestic… read more 

https://www.c-span.org/video/?525358-1/president-biden-speaks-ebenezer-church-atlanta

The president condemned Trump-led extremism and cast the midterm elections as a “battle for the soul of the nation.”

PHILADELPHIA — President Biden traveled to Independence Hall on Thursday to warn that America’s democratic values are under assault by forces of extremism loyal to former President Donald J. Trump, using a prime-time address to define the midterm elections as a “battle for the soul of this nation.”

The speech was intended to deliver a dark message about threats to the fabric of the country’s democracy. But aides said Mr. Biden sought to strike a balance just two months before elections that will determine control of Congress, seeking to offer a sense of optimism about the future and urging Americans to fight back against extremism.

“Donald Trump and the MAGA Republicans represent extremism that threatens the very foundations of our Republic,” Mr. Biden said, noting that not all Republicans follow Mr. Trump’s ideology. “But there’s no question that the Republican Party today is dominated, driven and intimidated by Donald Trump and the MAGA Republicans. And that is a threat to this country.”

Citing the “extraordinary experiment of self-government” represented by the American Constitution, Mr. Biden said that “history tells us a blind loyalty to a single leader and a willingness to engage in political violence is fatal to democracy.”

The stakes are high for the president and his political advisers, who believe they must cast the midterms as nothing less than an existential choice for voters between Mr. Biden’s agenda and a return to the extremism of “MAGA Republicans” who have enabled Mr. Trump’s ideology. Mr. Biden plunged into the cultural issues that his party believes could help galvanize Democratic voters, by bringing up reproductive rights and fears that Supreme Court could undo gay marriage.

Read More

“MAGA forces are determined to take this country backward,” Mr. Biden said. “Backward to an America where there is no right to choose, no right to privacy, no right to contraception, no right to marry who you love.”

The focus on threats to democracy is a return to an issue that Mr. Biden said drove him to run for the presidency, after watching white supremacists march through Charlottesville, Va., in 2017. Since taking office, he has often said that the United States and its allies are engaged in a long-running struggle between “autocracy and democracy” that will determine the fate of the rules-based order.

Mr. Biden spoke to several hundred spectators seated in front of Independence Hall in Philadelphia, where the country’s political institutions were born and just steps from the Liberty Bell. In his remarks, Mr. Biden made it clear that he believes the political violence and election denial espoused by the former president and his allies have damaged America’s reputation abroad.

The president had sought to avoid casting the conflict as a purely partisan one, according to White House officials familiar with the speech. But he called on Americans to go to the polls in November and reject Republican candidates who have signed on to the former president’s brand of politics.

He said Americans are not powerless to stop extremism and do not have to act like “bystanders in this ongoing attack on democracy” by failing to vote.

“For a long time, we’ve reassured ourselves that American democracy is guaranteed,” Mr. Biden said. “But it is not. We have to defend it. Protect it. Stand up for it. Each and every one of us.”

In particular, Mr. Biden condemned what he sees as an increase in politically violent rhetoric such as the threats against federal agents in the wake of the F.B.I.’s search for classified documents at Mr. Trump’s Mar-a-Lago estate. Such threats, he said, threaten to undermine faith in the country’s law enforcement and have no place in normal political discourse.

In Thursday’s speech, Mr. Biden was specific about the threats inside America’s borders, saying that his political rivals have formed a party of extremism, threatening the democratic traditions debated and adopted at Independence Hall almost 250 years ago.

Mr. Biden has been planning the speech since early this summer, according to a Democratic official familiar with the president’s thinking. The official, who asked for anonymity to discuss private conversations with Mr. Biden, said the president has been concerned that the forces that animated the Jan. 6, 2021, attack on the Capitol are not fading away.

Recently, however, the president has grown more motivated to deliver it because of persistent false claims of election fraud as voters prepare to go to the polls in the midterms, a White House official said.

In several recent speeches, Mr. Biden has replaced his usual calls for unity with sharp condemnations of “MAGA extremists,” saying Republicans have embraced “semi-fascism.”

Republicans have cited the president’s language as evidence that he has fallen short of his promise to bring the country together.

“Biden has pitted neighbors against each other, labeled half of Americans as fascist and tarnished any idea of his promise of ‘unity,’” Emma Vaughn, a spokeswoman for the Republican National Committee, said in a statement.

Karine Jean-Pierre, the White House press secretary, said the president’s aggressive tone has “hit a nerve.”

“We understand that they’re trying to hide, and we understand that ultra-MAGA officeholders want to play games here and dodge accountability for their extreme proposals and actions, but they’re just telling on themselves,” Ms. Jean-Pierre said.

Mr. Biden’s combative message coincides with new polling that suggests his party’s fortunes — and his own popularity — have improved after several legislative accomplishments, a decline in gas prices and strong job growth that has given Democrats hope that they may retain control of Congress.

A poll published by The Wall Street Journal on Thursday found Democrats with a small lead over Republicans when voters were asked which party they preferred in their own districts. Five months ago, Republicans held a larger lead over Democrats in the same survey.

The poll also found some improvement in Mr. Biden’s approval rating, which rose to 45 percent from 42 percent in March. That could mean Mr. Biden is less of a drag on his party’s candidates than some Democratic strategists had feared in the spring.

Senator Mitch McConnell of Kentucky, the Republican leader, once vowed that “100 percent of my focus” would be on stopping Mr. Biden from making progress on his Democratic agenda. Recently, the Senate’s longtime tactician has found himself on the losing end of the legislative ledger.

Mr. McConnell has failed to block several of Mr. Biden’s high-profile bills, including a $1 trillion infrastructure package, a bill to improve competition with China, and a vast new investment in efforts to fight climate change and negotiate drug prices.

That has been in part because Mr. McConnell needs to protect incumbent Republican senators from a suburban backlash against the kinds of extreme positions in parts of the Republican Party that Mr. Biden has been raising more frequently in recent weeks.

The president and his allies still face a difficult task: retaining control of the House and the Senate at a time of high inflation and deep concerns among the majority of voters about the direction of the country under the leadership of Mr. Biden and Democrats in Congress. In The Journal’s survey, two-thirds of the registered voters who were polled said they believe the country’s economy is not good or poor.

But Mr. Biden’s political advisers believe the warnings about political extremism and Mr. Trump are an important part of motivating Democrats, independents and moderate Republicans to come to the polls.

The trip on Thursday will be Mr. Biden’s second to Pennsylvania this week, and he is expected to make a third on Labor Day. Pennsylvania, a swing state, will hold crucial races for the House and Senate as well as a closely watched governor’s race.

During his first year in office, Mr. Biden promised to bring a sense of normalcy to the White House and largely ignored Mr. Trump. But the former president is once again at the fore, with continuing investigations into the Jan. 6 attack on the Capitol and an F.B.I. search last month of his residence in Florida for classified documents.

“I think finally the party and the people are waking up to see we have to hold these folks accountable,” said Quentin James, the president of Collective PAC, an organization dedicated to electing African-American officials.

“You may be paying a little more for your groceries, but the reality of what’s on the other side? It’s much more dire,” he said.

The speech comes at a moment of deep national divisions.

According to an NBC News poll released last month, nearly three-quarters of Americans believe the nation is heading in the wrong direction. The F.B.I. and the Department of Homeland Security have issued several warnings about how false claims regarding election fraud are motivating extremists attacks.

“We are in a crisis in this country. There’s no doubt about it. Not just in terms of the sanctity of the vote or trusting our votes will be counted,” said Allida Black, a historian at the University of Virginia who met privately with Mr. Biden last month to discuss the state of democracy. “We seem to attack rather than embrace responsibility and accountability.”

It is not the first time Mr. Biden has delivered a speech that is not about policies or campaigns but rather the morality of the country. He embarked on a “soul of the nation” bus tour during the presidential campaign and committed to unifying America during his inauguration.

Zolan Kanno-Youngs reported from Philadelphia, and Michael D. Shear from Washington.

 

Historians privately warn Biden that America’s democracy is teetering

When Biden met with historians last week at the White House, they compared the threat facing America to the pre-Civil War era and to pro-fascist movements before World War II

https://www.washingtonpost.com/politics/2022/08/10/biden-us-historians-democracy-threat/

 

New book details White House friction over voting rights push

Politico excerpts portions of Jonathan Martin and Alex Burns’s This Will Not Pass: Trump, Biden, and the Battle for America’s Future:

Harris did ask to lead the administration’s push to shore up federal voting rights. But as the effort stalled in Congress, leaving the White House (and Harris) with not many options, she placed some of the blame at Biden’s feet, according to the book. “How was she supposed to communicate clearly about voting-rights legislation, Harris asked West Wing aides, when the president would not even say that he supported changing the Senate rules to open the path for a bill?”

As calls for Biden to come out in favor of a filibuster carve-out for voting rights and frustration with the White House’s perceived lack of prioritization of the issue grew, Harris told Biden aides that she couldn’t be as forceful publicly as she wanted to be. She told him she couldn’t go all out until “voters knew that Biden himself was willing to back the procedural steps required to” pass legislation, the two write.

The VP’s office declined to comment on the excerpts.

 

Biden ties midterm election legitimacy to doomed voting rights bill

Posted January 19, 2022 

 

Biden calls on leaders to end ‘backward slide’ of democracy

December 9, 2021

WASHINGTON (AP) — President Joe Biden expressed alarm at a “backward slide” of democracy around the globe on Thursday, calling on fellow world leaders to work with him to bolster democratic institutions as his administration grows increasingly concerned about China’s and Russia’s push for global influence.

Biden’s comments to more than 100 leaders at the White House’s first virtual Summit for Democracy came as they pointed to a host of challenges confronting democracies, including corruption, inequality, and limitations on press freedom. The leaders also expressed increasing worry about the perils of disinformation and strengthening autocracies.

“Will we allow the backward slide of rights and democracy to continue unchecked?” Biden asked. “Or will we together — together — have a vision … and courage to once more lead the march of human progress and human freedom forward?”

Chinese officials have offered a stream of public criticism about the summit. They have also expressed outrage over the administration inviting Taiwan to take part. China claims the self-governing island as part of its territory and objects to it having contacts on its own with foreign governments.

 

Can Executive Action Fill In Voting Rights Gaps? 

The Franchise from TPM

By Matt Shuham

September 27, 2021

As congressional voting rights packages stall, conservative judges continue to poke holes in the franchise, and Republican legislatures attack voter access, the executive branch has a role to play.

President Biden said so in March, when he gave executive agencies 200 days to submit plans to make voting easier. I’ve been speaking to voting rights activists and advocates for months about those plans, including people involved in calls with the administration. Bottom line: Agencies could do a lot, if they get creative. What if every college financial aid form came with an option to register to vote? What if every Social Security, public housing, and food stamp point-of-contact also offered to help people vote?

That’s all within the federal government’s authority. But will it flex its muscles? We don’t know yet: Though Biden’s 200-day deadline was Thursday, the administration hasn’t made the agencies’ plans public.

Still, people who’ve worked with the administration on voting rights sounded optimistic. Jacqueline De León, a staff attorney at the Native American Rights Fund, said NARF was “encouraged by the attendance and the attentiveness” of the administration, though she and others said they, too, hadn’t yet seen concrete plans from the administration.

De León, who pointed to NARF’s thorough report on barriers to Native American voting, listed a couple new policies she’d like to see: Agencies with which would-be Native American voters often interact, including the Indian Health Service and the Department of Agriculture, could become “touch points” for registration. Also, the administration could work with the U.S. Postal Service to address “the dire lack of addressing across Indian country, and lack of residential mail delivery.”

The facts on the ground are plain, De León said: “White rural areas are getting more mail service than Native American areas.” The administration, she said, ought to address that and other disparities.

 

Biden pleads for action as voting rights tug-of-war continues

During the centennial anniversary of Tulsa’s race massacre, President Biden called on Democratic lawmakers to protect voters’ rights as Republicans in Texas and other states pass new restrictions making it tougher to cast ballots.

Alexandra Jaffe and Lisa Mascaro, Associated Press WASHINGTON, D.C.

President Joe Biden used the 100th anniversary of Tulsa’s race massacre to make a plea for sweeping legislation in Congress to protect the right to vote as Republican-led governments in Texas and other states pass new restrictions making it tougher to cast ballots.

He vowed that June will be a “month of action” on Capitol Hill as Congress considers the legislation, among the top priorities of his administration.

“We’re not giving up,” Mr. Biden said about the bill, S.1. “I’m going to fight like heck with every tool at my disposal for its passage.”

Republican legislators in state capitols across the nation are pushing what experts say is an unprecedented wave of bills aimed at restricting access to the ballot box. While Republicans say the bills are aimed at preventing voter fraud, Democrats contend that the measures are aimed at undermining minority voting rights in particular.

Read More

Most recently, the Texas legislature moved closer to passing a bill that would reduce early voting hours, tighten voter identification requirements for absentee ballots and eliminate ballot drop boxes and drive-thru voting centers. The bill was blocked only when Texas Democrats walked off the House floor on Sunday night, but Republican Gov. Greg Abbott has said he’ll order a special session to ultimately ensure its passage.

Mr. Biden has tasked Vice President Kamala Harris with leading the administration’s efforts to defend voting rights, declaring that with her leadership, Americans will again “overcome” efforts to reduce access to voting, as they have in the past and did during the 2020 election, which saw record turnout despite new voting restrictions.

It adds another high-profile fight to Ms. Harris’ fast-expanding portfolio, which includes addressing the root causes of migration from Central America, leading the National Space Council, and working on expanding access to broadband internet.

In a statement, Ms. Harris said she plans to work with voting rights groups, community organizations, and the private sector to strengthen voting rights, as well as push for passage of voting rights legislation on Capitol Hill.“The work ahead of us is to make voting accessible to all American voters, and to make sure every vote is counted through a free, fair, and transparent process. This is the work of democracy,” she said.

The U.S. Senate responds:

Senate Republican leader Mitch McConnell on Wednesday downplayed the ability of the new state laws to quash voter turnout.

“I don’t think any of these efforts at the state level are designed to suppress the vote based upon race,” Mr. McConnell said at a press conference in Kentucky.

Mr. McConnell vowed to block S.1, characterizing the bill that’s heading to a vote as undue federal overreach into state election systems. He said no GOP senators support it.

Despite Mr. Biden’s pledge to keep fighting to pass legislation protecting voting rights, however, he acknowledged Tuesday that his biggest obstacle may lie within his own party.

Mr. Biden called out two fellow Democrats in explaining why he hasn’t enacted some of the most ambitious elements of his agenda, noting that slim majorities in the House and evenly

But it’s not just Mr. Manchin and Ms. Sinema who oppose doing away with the filibuster – as many as 10 Democratic senators are reluctant to change the rules even for must-pass legislation like the voting rights bill. Mr. Biden himself has not said he wants to end the filibuster.

It’s unclear whether Mr. Biden’s comments will change the views of any senators, who are facing tough choices ahead as pressure mounts on them.

Senate Majority Leader Chuck Schumer, D-N.Y., told colleagues that he would be bringing the voting rights bill to a vote the week of June 21, in effect testing where senators stand. Mr. Schumer warned in a letter to colleagues last week to brace for the month ahead.

“The June work period will be extremely challenging,” Mr. Schumer told them, adding that it would “test our resolve.”

Mr. Biden has tasked Vice President Kamala Harris with leading the administration’s efforts to defend voting rights, declaring that with her leadership, Americans will again “overcome” efforts to reduce access to voting, as they have in the past and did during the 2020 election, which saw record turnout despite new voting restrictions.

It adds another high-profile fight to Ms. Harris’ fast-expanding portfolio, which includes addressing the root causes of migration from Central America, leading the National Space Council, and working on expanding access to broadband internet.

In a statement, Ms. Harris said she plans to work with voting rights groups, community organizations, and the private sector to strengthen voting rights, as well as push for passage of voting rights legislation on Capitol Hill.“The work ahead of us is to make voting accessible to all American voters, and to make sure every vote is counted through a free, fair, and transparent process. This is the work of democracy,” she said.

This story was reported by The Associated Press. AP writers Jonathan Lemire in New York and Darlene Superville in Tulsa, Oklahoma contributed to this report.

 

By Choice and Circumstance, Democrats Put Voting Rights on the Ballot

Limited in their options and in disagreement about how far to go to pass federal legislation, Democrats are approaching voting rights as an issue to be won in future elections.

By Marc Tracy

Published July 13, 2021; Updated Aug. 11, 2021

[Excerpts:]

Mr. Biden used forceful rhetoric — he asked opponents of expanding voting rights if they had no shame — but he did not propose the structural reform that supporters of the For the People Act say is essential. But if Mr. Biden persuades voters, then at the margins it may improve the atmosphere for Democrats in states where Republicans control part or all of government — like Georgia and Arizona, and also Wisconsin, Pennsylvania, North Carolina and New Hampshire, where Senate races in 2022 (and presidential ones in 2024) are expected to be close.

It may also prove to be smart politics. The elements of the For the People Act are popular, according to a Data for Progress poll.

“Voting has become like climate change or immigration or abortion: a topic within the election itself,” Dr. Hasen said. “It’s something that Democrats and Republicans can’t ignore.”

Which is to say, it is another issue on which Democrats can run. Whether you consider the For the People Act a cynical attempt to help Democrats or an enlightened amelioration of American democracy (which might help Democrats, at least a little), in absence of its passage, the option Democrats are left with is to continue to win elections.

 

From: “Noah Bierman – L.A. Times” <politics@email.latimes.com>
Date: August 18, 2021
Subject: Essential Politics: Harris chose voting rights. Advocates want results.

[Excerpts:]

Whenever you ask allies of Vice President Kamala Harris about her , they usually point to the tough assignments she has been given.

The vice president is also spearheading the Biden administration’s efforts to battle a slew of Republican-sponsored bills in state legislatures that Democrats say are designed to curtail voting rights. The fight is a top priority of progressives in her party, and the ability to beat back such legislation could have enormous electoral consequences for Democrats.

This particular hot potato wasn’t assigned to Harris. She sought it out.

“The advocates on the ground are fighting tooth and nail against the Texas governor and the Republican leadership,” said Carisa Lopez, political director for the Texas Freedom Network, a progressive social justice advocacy organization. “But we need help. We can’t do this without federal legislation.”

For now, White House officials are hopeful that a group of Democratic senators including moderate Joe Manchin III of West Virginia can draft a compromise bill that will attract some Republicans. But most activists and experts think they will need to carve out an exception to the filibuster rule, given Republican intransigence.

Census data released last week quantified a changing America, with more city dwellers and people of color and fewer rural Americans and white people, something my colleague David Lauter analyzed in Friday’s Essential Politics newsletter. That’s a problem for Republicans. And it bolsters the Democrats’ case that the effort to curtail voting options, inspired by former President Trump’s false claims of widespread election fraud, are intended to allow the party to cling to its shrinking base of white rural voters.

Harris’ advisors say she sought to spearhead the issue for the White House because she is passionate about it. But she’s not being judged on effort. Democrats want results.

 

“On Politics”

By Marc Tracey

July 13, 2021

[Excerpt[]

Biden used forceful rhetoric — he asked opponents of expanding voting rights if they had no shame — but he did not propose the structural reform that supporters of the For the People Act say is essential. But if Biden persuades voters, then at the margins it may improve the atmosphere for Democrats in states where Republicans control part or all of government — like Georgia and Arizona, and also Wisconsin, Pennsylvania, North Carolina and New Hampshire, where Senate races in 2022 (and presidential ones in 2024) are expected to be close. (Emphasis added)

It may also prove to be smart politics. The elements of the For the People Act are popular, according to a Data for Progress poll.

Whether you consider the For the People Act a cynical attempt to help Democrats or an enlightened amelioration of American democracy (which might help Democrats, at least a little), in absence of its passage, the option Democrats are left with is to continue to win elections.

 

From: Heather Cox Richardson from Letters from an American

July 13, 2021

[Excerpt}

 “Are you on the side of truth or lies; fact or fiction; justice or injustice; democracy or autocracy?”

In a speech at the National Constitution Center in Philadelphia today, President Joe Biden asked his audience to take a stand as he called defending the right to vote in America, “a test of our time.” 

Biden explained that the 2020 election has been examined and reexamined and that “no other election has ever been held under such scrutiny and such high standards.” The Big Lie that Trump won is just that, he said: a big lie. 

Nonetheless, 17 Republican-dominated states have enacted 28 laws to make it harder to vote. There are almost 400 more in the hopper. Biden called this effort “the 21st-century Jim Crow,” and promised to fight it. He pointed out that the new laws are doing more than suppressing the vote. They are taking the power to count the vote “from independent election administrators who work for the people” and giving it to “polarized state legislatures and partisan actors who work for political parties.”

“This is simple,” Biden said. “This is election subversion. It’s the most dangerous threat to voting and the integrity of free and fair elections in our history.”

 

Biden pleads for action as voting rights tug-of-war continues

During the centennial anniversary of Tulsa’s race massacre, President Biden called on Democratic lawmakers to protect voters’ rights as Republicans in Texas and other states pass new restrictions making it tougher to cast ballots.

Alexandra Jaffe and Lisa Mascaro, Associated Press WASHINGTON, D.C.

President Joe Biden used the 100th anniversary of Tulsa’s race massacre to make a plea for sweeping legislation in Congress to protect the right to vote as Republican-led governments in Texas and other states pass new restrictions making it tougher to cast ballots.

He vowed that June will be a “month of action” on Capitol Hill as Congress considers the legislation, among the top priorities of his administration.

Read More

“We’re not giving up,” Mr. Biden said about the bill, S.1. “I’m going to fight like heck with every tool at my disposal for its passage.”

Republican legislators in state capitols across the nation are pushing what experts say is an unprecedented wave of bills aimed at restricting access to the ballot box. While Republicans say the bills are aimed at preventing voter fraud, Democrats contend that the measures are aimed at undermining minority voting rights in particular.

Most recently, the Texas legislature moved closer to passing a bill that would reduce early voting hours, tighten voter identification requirements for absentee ballots and eliminate ballot drop boxes and drive-thru voting centers. The bill was blocked only when Texas Democrats walked off the House floor on Sunday night, but Republican Gov. Greg Abbott has said he’ll order a special session to ultimately ensure its passage.

Mr. Biden has tasked Vice President Kamala Harris with leading the administration’s efforts to defend voting rights, declaring that with her leadership, Americans will again “overcome” efforts to reduce access to voting, as they have in the past and did during the 2020 election, which saw record turnout despite new voting restrictions.

It adds another high-profile fight to Ms. Harris’ fast-expanding portfolio, which includes addressing the root causes of migration from Central America, leading the National Space Council, and working on expanding access to broadband internet.

In a statement, Ms. Harris said she plans to work with voting rights groups, community organizations, and the private sector to strengthen voting rights, as well as push for passage of voting rights legislation on Capitol Hill.“The work ahead of us is to make voting accessible to all American voters, and to make sure every vote is counted through a free, fair, and transparent process. This is the work of democracy,” she said.

The U.S. Senate responds:

Senate Republican leader Mitch McConnell on Wednesday downplayed the ability of the new state laws to quash voter turnout.

“I don’t think any of these efforts at the state level are designed to suppress the vote based upon race,” Mr. McConnell said at a press conference in Kentucky.

Mr. McConnell vowed to block S.1, characterizing the bill that’s heading to a vote as undue federal overreach into state election systems. He said no GOP senators support it.

Despite Mr. Biden’s pledge to keep fighting to pass legislation protecting voting rights, however, he acknowledged Tuesday that his biggest obstacle may lie within his own party.

Mr. Biden called out two fellow Democrats in explaining why he hasn’t enacted some of the most ambitious elements of his agenda, noting that slim majorities in the House and evenly divided Senate have hamstrung legislative negotiations around key issues like voting rights.

Responding to critics who question why he hasn’t been able to get a wide-reaching voting rights bill passed, Mr. Biden lamented, “Well, because Biden only has a majority of effectively four votes in the House, and a tie in the Senate – with two members of the Senate who voted more with my Republican friends.”

It appeared to be a veiled reference to Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, both of whom have frustrated Democrats with their defense of the filibuster. The rule requires most legislation to win 60 votes to pass, making many of Democrats’ biggest priorities like voting rights and gun control dead on arrival in the 50-50 Senate. While Senator Sinema is a sponsor of the voting rights bill that passed the House, known as the For the People Act, Senator Manchin has refused to sign on, calling the measure “too broad.”

But it’s not just Mr. Manchin and Ms. Sinema who oppose doing away with the filibuster – as many as 10 Democratic senators are reluctant to change the rules even for must-pass legislation like the voting rights bill. Mr. Biden himself has not said he wants to end the filibuster.

It’s unclear whether Mr. Biden’s comments will change the views of any senators, who are facing tough choices ahead as pressure mounts on them.

Senate Majority Leader Chuck Schumer, D-N.Y., told colleagues that he would be bringing the voting rights bill to a vote the week of June 21, in effect testing where senators stand. Mr. Schumer warned in a letter to colleagues last week to brace for the month ahead.

“The June work period will be extremely challenging,” Mr. Schumer told them, adding that it would “test our resolve.”

Mr. Biden has tasked Vice President Kamala Harris with leading the administration’s efforts to defend voting rights, declaring that with her leadership, Americans will again “overcome” efforts to reduce access to voting, as they have in the past and did during the 2020 election, which saw record turnout despite new voting restrictions.

It adds another high-profile fight to Ms. Harris’ fast-expanding portfolio, which includes addressing the root causes of migration from Central America, leading the National Space Council, and working on expanding access to broadband internet.

In a statement, Ms. Harris said she plans to work with voting rights groups, community organizations, and the private sector to strengthen voting rights, as well as push for passage of voting rights legislation on Capitol Hill.“The work ahead of us is to make voting accessible to all American voters, and to make sure every vote is counted through a free, fair, and transparent process. This is the work of democracy,” she said.

This story was reported by The Associated Press. AP writers Jonathan Lemire in New York and Darlene Superville in Tulsa, Oklahoma contributed to this report.

 

Renewed Federal Enforcement of Voting Rights

 

 

 

[Editor’s Note: U.S. Attorney General explains that the rule of law is the foundation for our system of government. From is flows the right to vote and be counted].

Merrick Garland’s Red Line

Garland Draws His Line

ICYMI, Attorney General Merrick Garland gave a speech at Ellis Island over the weekend. It was a remarkable moment, and worth revisiting.

Garland spoke as former (and perhaps future) president Trump ratcheted up his not-so-veiled threats of chaos, anarchy, and violence if he is held legally accountable.

Trump’s escalation gave new urgency to the question: Would Garland blink? Would the attorney general decide that charging Trump would be too risky? Would he put “prudence” ahead of the rule of law?

I read Garland’s speech as a direct answer to Trump’s attempt to intimidate him.

“The protection of law – the Rule of Law – is the foundation of our system of government,” Garland said. And he went on to emphasize that no one — no one — is above that law.

The Rule of Law means that the same laws apply to all of us, regardless of whether we are this country’s newest citizens or whether our [families] have been here for generations.

The Rule of Law means that the law treats each of us alike: there is not one rule for friends, another for foes; one rule for the powerful, another for the powerless; a rule for the rich, another for the poor; or different rules, depending upon one’s race or ethnicity or country of origin.

Garland acknowledged that all of that was under threat. “The Rule of Law is not assured,” he said. “It is fragile. It demands constant effort and vigilance.”

And then he invoked our — and his — duty to uphold it, especially at this fraught moment in history.

The responsibility to ensure the Rule of Law is and has been the duty of every generation in our country’s history. It is now your duty as well. And it is one that is especially urgent today at a time of intense polarization in America.

Garland placed “our intense polarization,” in historical context. The country, he explained to a group of new citizens, was “no stranger to what our Founders called the risk of faction. Alexander Hamilton and James Madison wrote about it in the Federalist Papers. George Washington warned against it in his Farewell Address.”

Then he laid out the challenge.

Overcoming the current polarization in our public life is, and will continue to be, a difficult task.

But we cannot overcome it by ignoring it. We must address the fractures in our society with honesty, with humility, and with respect for the Rule of Law.

That meant tolerating peaceful disagreement and “demands that we listen to each other, even when we disagree.”

But, Garland emphasized, it also “it demands that we reject violence and threats of violence that endanger each other and endanger our democracy.”

“We are all in this together,” the attorney general said. “We are all Americans.” 

And then, Merrick Garland drew his red line:

On this historic day and in this historic place, let us make a promise that each of us will protect each other and our democracy.

That we will honor and defend our Constitution.

That we will recognize and respect the dignity of our fellow Americans.

That we will uphold the Rule of Law and seek to make real the promise of equal justice under law.

That we will do what is right, even if that means doing what is difficult.
Merrick Garland calls Department of Justice’s Jan. 6 probe “the most wide ranging investigation in its history”

The Justice Department plans to prosecute anyone who was “criminally responsible for interfering with the peaceful transfer of power from one administration to another,” Attorney General Merrick Garland said Tuesday, speaking more expansively than he has previously about a federal criminal investigation that appears to have moved far beyond the rioters who attacked the Capitol.

In an exclusive interview with “NBC Nightly News” anchor Lester Holt, Garland said that the televised hearings by the House Jan. 6 committee highlighted “the truth of what happened … and what a risk it meant for our democracy.” And he acknowledged that Justice Department investigators learned things from the congressional testimony.

“Look, the Justice Department has been doing the most wide-ranging investigation in its history,” he said. “And the committee is doing an enormously wide-ranging investigation as well. It is inevitable that there will be things that they find before we have found them. And it’s inevitable that there will be things we find that they haven’t found. That’s what happens when you have two wide-ranging investigations going on at the same time.”

A day after news broke that the chief of staff to former Vice President Mike Pence had been called before a federal grand jury investigating Jan. 6, Holt pressed Garland on whether the Justice Department would indict former President Donald Trump if the evidence supported such an action.

“The indictment of a former president, and perhaps a candidate for president, would arguably tear the country apart,” Holt said. “Is that your concern as you make your decision down the road here, do you have to think about things like that?”

Garland replied: “We intend to hold everyone, anyone who was criminally responsible for the events surrounding Jan. 6, for any attempt to interfere with the lawful transfer of power from one administration to another, accountable. That’s what we do. We don’t pay any attention to other issues with respect to that.”

Holt followed up, asking whether, if Trump were to become a candidate for president again, “that would not change your schedule or how you move forward or don’t move forward?”

Garland responded: “I’ll say again that we will hold accountable anyone who was criminally responsible for attempting to interfere with the transfer, legitimate, lawful transfer of power from one administration to the next.”

 

DOJ Challenges AZ Voter Registration Law

From the press release:

The Justice Department announced today that it has filed a lawsuit against the State of Arizona challenging voting restrictions imposed by House Bill 2492 (2022), a recently-enacted law set to take effect in January 2023. The United States’ complaint challenges provisions of House Bill 2492 under Section 6 of the National Voter Registration Act of 1993 (NVRA) and Section 101 of the Civil Rights Act of 1964….

The United States’ complaint contends that House Bill 2492 violates the NVRA by requiring that applicants produce documentary proof of citizenship before they can vote in presidential elections or vote by mail in any federal election when they register to vote using the uniform federal registration form created by the NVRA. This requirement flouts the 2013 U.S. Supreme Court decision in Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1 (2013), which rejected an earlier attempt by Arizona to impose a similar documentary proof of citizenship mandate on applicants seeking to vote in federal elections. The United States’ complaint also contends that House Bill 2492 violates Section 101 of the Civil Rights Act by requiring election officials to reject voter registration forms based on errors or omissions that are not material to establishing a voter’s eligibility to cast a ballot.

Tuscon.com has this story, and the Hill this one.

 

After a Rocky First Year, a Cautious Garland Finds His Footing

[Excerpt:]

During his first year, Mr. Garland paid particular attention to states that have sought to weaken voting rights and ban abortion. These legal battles have implications for voters and courts, groups that can check presidential power.

“The core purpose of the Justice Department is to protect civil rights and civil liberties, and the fundamental element of that is the right to vote,” Mr. Garland said. “That’s what makes this country a representative democracy.”

If those rights are curbed, he added, “inherently, people worry about whether elections are fair.

Mr. Garland doubled the number of voting rights prosecutors, sued Georgia and Texas over their new voting laws and indicted people who had threatened Georgia state officials and a Nevada election official.

His rare political entreaties have been for Congress to pass voter protection laws so he can enforce them.

Mr. Garland also worked on the department’s response to the Texas abortion law that all but bans the procedure, including the lawsuit aimed at stopping Texas from enforcing the statute and the department’s Supreme Court brief. (The court recently allowed the law to stay in effect until lower courts decide its fate.)

In his estimation, Texas not only took away a right that the Supreme Court had long upheld, but it also did so in a way that severely curbed the power of the courts. The result, he said, was a road map for states seeking an “end run” around “any right in the Constitution.”

“He is not a grandstander. He is not a showboater,” said Karen Dunn, who clerked for Mr. Garland and is now a lawyer in Washington. “He brings to this work a deep love for the Justice Department and a deep commitment to the values of the department and the ideals of justice.”

During a private meeting between Mr. Garland and federal prosecutors in Atlanta, one official broached the Jan. 6 investigation. Mr. Trump had pushed out their former U.S. attorney for not finding election fraud, and he had pressured Georgia officials to overturn the election result. They were eager for an update.

But Mr. Garland offered no new insights. There was no talk about where the inquiry was heading. No discussion of the larger stakes. Behind closed doors, he only repeated his public statements: The attack was an unacceptable assault on elections, the cornerstone of democracy. The department was trying to track down every lead.

And prosecutors, he said, were working around the clock.

Criminal referrals of former Trump officials pose thorny questions for DOJ

 

Opinion: Garland’s caution is an asset when it comes to holding Trump accountable

ByE.J. Dionne Jr.

Columnist|

January 9, 2022 

https://www.washingtonpost.com/opinions/2022/01/09/garlands-caution-is-an-asset-when-it-comes-holding-trump-accountable/

 

Biden Justice Department Voting Rights Strategy Comes Into Focus

December 11, 2021
[Excerpts:]

In July, the DOJ issued a “guidance” document that laid out its premise for suing to protect “methods of voting” under the VRA and U.S. Constitution, and previewed arguments it would make. That guidance anticipated the DOJ’s first lawsuit against Texas in November—in response to a new law allegedly foreclosing voting options for voters with disabilities, and also rejecting any absentee ballot return envelope that wasn’t filled out properly. The DOJ cited the VRA’s protection of voters with disabilities and contended that a little-used part of the 1964 Civil Rights Act barred disqualifying otherwise legal ballots for a voter’s mistakes on envelopes.

“That’s an example of the DOJ looking to more creative uses of some of the tools that are potentially out there,” Pildes said. “They’re not saying the state can’t impose this requirement. They are saying the state can’t reject ballots for failing to meet the [envelope’s notary] requirement.”

In late July, the DOJ also issued guidance on the conduct of post-election audits, where it noted that federal election records requirements included public officials preserving and maintaining custody of all election records—paper and digital—and reiterated voter intimidation law. (It has not yet sued here; by the time the guidance was issued, Arizona’s post-2020 review was largely completed.) In September, the DOJ issued guidance concerning redistricting that anticipated the December 6 lawsuit against Texas.

“Earlier this year, I noted that this redistricting cycle would be the first to proceed since 1960 without the protection of preclearance,” Attorney General Merrick Garland said on December 6, announcing the Texas redistricting lawsuit, referring to the DOJ’s power before 2013 to overrule any new law or rule that rolled back voting rights. “I also said that the department would use all available authorities and resources to continue protecting the right to vote.”

In his remarks, Garland urged Congress to restore the VRA’s preclearance provisions. As before, he restated the DOJ’s commitment to voting rights. But there are still areas where Garland’s initiatives—notably convening an interagency task force to counter violent threats to election officials (primarily from Trump’s supporters)—thus far have not led to any prosecutions.

That absence of visible progress has led to a coalition of bipartisan election lawyers (which includes Republicans who reject Trump’s attacks) to announce they would defend election officials under attack. One lawyer who is part of that effort said that he knows that the DOJ’s Civil Rights Division was decimated by the Trump administration, but he had “no patience” given threats of violence, especially after Reuters reporters tracked down Trump activists making death threats (where local prosecutors declined to press charges).

Such tension between those inside the highest reaches of government and outside advocates seeking federal action on civil rights has been part of American history since before the Civil War. For his part, Garland said the DOJ was proceeding “carefully,” but also sought to restore the VRA to its full strength.

“In all these matters, we have carefully assessed the facts and the law before taking action,” he said when announcing the second Texas voting rights lawsuit. “Before I conclude, I want to again urge Congress to restore the Justice Department’s preclearance authority. Were that preclearance tool still in place, we would likely not be here today announcing this complaint.”

 

DOJ sues Texas over new election overhaul

BY JOSEPH CHOI – 11/04/21

https://thehill.com/homenews/state-watch/580174-doj-sues-texas-over-new-election-overhaul

 

Justice Department releases Voting Rights Act mapmaking guidance

States warned against diluting voting power of minorities

By Michael Macagnone

Posted September 1, 2021

https://www.rollcall.com/2021/09/01/justice-department-releases-voting-rights-act-mapmaking-guidance/

The Justice Department on Wednesday released a set of redistricting guidelines related to the Voting Rights Act, warning states and local governments redrawing district maps against diluting the voting power of minority communities.

“Where jurisdictions don’t draw maps that fairly enable all citizens, regardless of race or membership in a language minority, to elect the candidates of their choice, the Justice Department will act,” a Justice Department official told reporters Wednesday during a briefing.

Last month, the Census Bureau released detailed results from the 2020 census, kicking off the flurry of congressional and other redistricting ahead of next year’s midterm elections. 

The agency’s data showed that the country has become more diverse than ever, with an increasing population of Asian American, Black, Hispanic or Latino, and multiracial people. The white-only population dropped below 60 percent for the first time, as more than 40 percent of the country identified as another race or multiracial.

Advocates have argued that the growth should be reflected in the districts states draw — meaning more districts where minority groups have the voting power to elect candidates of their choice.

The DOJ official noted that the current round of redistricting would be the first time in decades that some states, including Texas, draw new maps without preclearance from the department. A 2013 Supreme Court decision, Shelby County v. Holder, invalidated the formula the government used to subject states to that scrutiny.

Now, if one of those states draws a map that dilutes the power of minority voters, the Justice Department would need to sue after the fact to have the map tossed under Section 2 of the Voting Rights Act. That portion of the law bans discrimination against voters on the basis of race, color or member of a language minority.

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new Voting Rights Act bill to reinstate that preclearance passed the Democratic-controlled House last month on a party line vote, sending it to the tightly divided Senate. The measure has the backing of President Joe Biden, who has urged the Senate to pass it.

Moderate Senate Democrats such as West Virginia’s Joe Manchin III have come out in favor of the the measure, but they have balked at calls by some progressives to alter the filibuster rules to pass it.

That would mean looking for the support of 10 Republicans to advance any legislation, and only one, Alaska’s Lisa Murkowski, has signed on to another Voting Rights Act. Most Republicans have argued the measure is an overreach, unnecessary in modern times.

The redistricting litigation is distinct from other voting rights litigation brought by the Justice Department, including a pending lawsuit over a new Georgia election law. This summer, Attorney General Merrick B. Garland said the DOJ would undertake a broader review of a wave of election laws passed in Republican-controlled states following the 2020 election.

 

Date: August 17, 2021

US Assistant Attorney General Kristen Clarke testified before a House Judiciary subcommittee Monday morning about the dangers of life under a butchered Voting Rights Act: “On behalf of the Attorney General, we ask Congress to pass appropriate legislation that will restore and improve the Voting Rights Act, enhancing the Department’s ability to protect the right to vote in the twenty-first century and beyond,” she wrote in prepared remarks.

From: “Matt Shuham (TPM)” <mshuham@talkingpointsmemo.com>

 

Feds Sue Georgia

From TPM, The Franchise: What you need to know about voting rights and democracy in America

By Matt Shuman

06/29/21

Subscribe: https://talkingpointsmemo.com

Georgia’s new law restricted the distribution of absentee ballot applications, added ID requirements for absentee ballot users, and set a new deadline for requesting an absentee ballot — all after Black Georgians began voting absentee at higher rates than their white counterparts in the state, the federal government noted in U.S. v. Georgia,filed Friday. It also limited drop boxes, banned handing out food and drinks to voters waiting in long lines, and restricted how ballots cast at the wrong precinct are counted.
>> Key quote: “The challenged provisions of SB 202 were adopted with the purpose of denying or abridging Black citizens’ equal access to the political process, in violation of Section 2 [of the Voting Rights Act].” 

The feds’ lawsuit in Georgia doesn’t challenge every aspect of the new restrictive voting law. It actually leaves out a particularly jarring two-pronged change: SB 202 removed the secretary of state as chair of the State Election Board, instead filling the role with someone appointed by the legislature. SB 202 also allows the state board to step in and temporarily replace local elections officials who they deem to be underperforming.

What does that mean? The state board, now steered by the state’s GOP-controlled legislature, can insert themselves into Democratic counties’ election processes.

That dynamic is playing out elsewhere: As part of a larger budget bill, the Arizona legislature approved a measure to formally cut out Secretary of State Katie Hobbs from election-related lawsuits, replacing her with Attorney General Mark Brnovich (R).

 

“Will a pending Supreme Court case doom DOJ’s voting rights lawsuit before it begins?”

Ariane de Vogue for CNN:

When Attorney General Merrick Garland appeared before cameras Friday to announce a lawsuit challenging Georgia’s new voting restrictions, it was the timing and the Justice Department’s strategy that intrigued voting rights experts.

That’s because the lawsuit — triggering the latest dispute about the scope of Section 2 of the Voting Rights Act — came as the Supreme Court is poised to release an opinion on the very same section of the law. The opinion — in one of the marquee cases of the term — will come down next week. In addition, Garland timed his announcement to the exact eight-year anniversary of the court’s last big voting rights case. In the landmark decision called Shelby County v. Holder, Chief Justice John Roberts, writing for a 5-4 majority, effectively gutted a separate section of the law and declared that “things have changed in the South.”

Garland wanted to send a clear message Friday: Roberts was wrong. “I express concern about the dramatic rise in state legislative actions that will make it harder for millions of citizens to cast a vote that counts,” the attorney general said….

But even if Carvin wins and the Supreme Court pares down the kinds of cases that can be brought under the “results test,” that may not impact Garland’s suit, and that’s why it was carefully crafted. Because instead of relying on the “results test,” the Justice Department made a different argument: It said Georgia legislators passed the law with the “intent” to discriminate.

That’s a different test under the law.

“The courts will consider a different set of factors in order to determine whether Georgia’s legislature intentionally discriminated against Black voters in the state,” said Sean Morales-Doyle, of the Brennan Center for Justice.”

The question of discriminatory intent could come up in the Brnovich case, but the focus of that case has been on the ‘results test,’ ” he said. “That means the Supreme Court’s decision is unlikely to impact the likelihood of success in the new case.”Rick Hasen, a voting rights expert at the UC Irvine School of Law, said in a blog post that because the Justice Department had brought its case only under the “intent test,” it “insulates it from an adverse ruling in Brnovich.” That means the new suit could go forward even “after a potentially adverse ruling.”

 

FOR IMMEDIATE RELEASE
Friday, June 25, 2021

Justice Department Files Lawsuit Against the State of Georgia to Stop Racially Discriminatory Provisions of New Voting Law

The U.S. Justice Department announced today that it filed a lawsuit against the State of Georgia, the Georgia Secretary of State, and the Georgia State Election Board over recent voting procedures adopted by Georgia Senate Bill 202, which was signed into law in March 2021. The United States’ complaint challenges provisions of Senate Bill 202 under Section 2 of the Voting Rights Act.

“The right of all eligible citizens to vote is the central pillar of our democracy, the right from which all other rights ultimately flow,” said Attorney General Merrick B. Garland  “This lawsuit is the first step of many we are taking to ensure that all eligible voters can cast a vote; that all lawful votes are counted; and that every voter has access to accurate information.”

“The right to vote is one of the most central rights in our democracy and protecting the right to vote for all Americans is at the core of the Civil Rights Division’s mission,” said Assistant Attorney General Kristen Clarke for Justice Department’s Civil Rights Division. “The Department of Justice will use all the tools it has available to ensure that each eligible citizen can register, cast a ballot, and have that ballot counted free from racial discrimination. Laws adopted with a racially motivated purpose, like Georgia Senate Bill 202, simply have no place in democracy today.”

“One of the fundamental rights of our democracy is the right to vote.  That right should be protected for every citizen of our district, regardless of race,” said Acting U.S. Attorney Kurt R. Erskine for the Northern District of Georgia. “The United States Attorney’s Office for the Northern District of Georgia is committed to protecting the rights of all Americans to vote.”

The United States’ complaint contends that several provisions of Senate Bill 202 were adopted with the purpose of denying or abridging the right to vote on account of race.  The Justice Department’s lawsuit alleges that the cumulative and discriminatory effect of these laws—particularly on Black voters—was known to lawmakers and that lawmakers adopted the law despite this.

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The United States’ complaint challenges several provisions of Senate Bill 202, including a provision banning government entities from distributing unsolicited absentee ballot applications; the imposition of costly and onerous fines on civic organizations, churches and advocacy groups that distribute follow-up absentee ballot applications; the shortening of the deadline to request absentee ballots to 11 days before Election Day; the requirement that voters who do not have identification issued by the Georgia Department of Driver Services photocopy another form of identification in order to request an absentee ballot without allowing for use of the last four digits of a social security number for such applications; significant limitations on counties’ use of absentee ballot drop boxes; the prohibition on efforts by churches and civic groups to provide food or water to persons waiting in long lines to vote; and the prohibition on counting out-of-precinct provisional ballots cast before 5 p.m. on Election Day. The complaint asks the court to prohibit Georgia from enforcing these requirements.

Deputy Attorney General Lisa O. Monaco also issued a memo to United States Attorneys and FBI Field Offices today on investigating and prosecuting threats to election officials. To assist with this important effort the department will also establish an intra-Departmental task force to address the rising threats.

Today’s announcements follow Attorney General Garland’s recent  commitment to expand the Justice Department’s efforts to safeguard voting rights.

More information about the Voting Rights Act and other federal voting laws is available on the Department of Justice’s website at www.justice.gov/crt/about/vot.  Complaints about discriminatory voting practices may be reported to the Voting Section of the Justice Department’s Civil Rights Division at 1-800-253-3931.

For a list of the department’s actions to protect voting rights, click here.

 

June 11, 2021

Merrick Garland announces Justice Dept. plans to protect voting access

https://www.nytimes.com/2021/06/11/us/politics/merrick-garland-voting-rights.html

Katie Benner

https://www.nytimes.com/2021/06/11/us/politics/merrick-garland-voting-rights.html

[This story has been edited for length.]

Attorney General Merrick B. Garland laid out a detailed plan on Friday for protecting voting rights, announcing that the Justice Department would double enforcement staff on the issue, scrutinize new laws that seek to curb voter access and act if it sees a violation of federal law.

Mr. Garland announced his plan as Republican-led state legislatures push to enact new restrictive voting laws, and amid dwindling chances for sweeping federal voter protection laws introduced by Democrats.

“To meet the challenge of the current moment, we must rededicate the resources of the Department of Justice to a critical part of its original mission: enforcing federal law to protect the franchise for all eligible voters,” Mr. Garland said in an address at the department.

The Justice Department will also scrutinize current laws and practices to determine whether they discriminate against nonwhite voters, he said. It was not clear how many people work on voting rights enforcement, nor what the total would be after the department adds to the staffing levels.

In more than a dozen states, at least 22 new laws have been passed that make it more difficult to vote, according to the Brennan Center for Justice, a progressive public policy institute that is part of the New York University School of Law.

Mr. Garland also said that the department was monitoring the use of unorthodox postelection audits that could undermine faith in the nation’s ability to host free and fair elections, adding that some jurisdictions have used disinformation to justify such audits. 

“Many of the justifications proffered in support of these postelection audits and restrictions on voting have relied on assertions of material vote fraud in the 2020 election that have been refuted by the law enforcement and intelligence agencies of both this administration and the previous one, as well as by every court — federal and state — that has considered them,” Mr. Garland said.

The department’s Civil Rights Division has sent a letter expressing concerns that one of those audits may have violated the Civil Rights Act, Mr. Garland said, in part because it could violate a provision in the act that bars voter intimidation. He did not specify which state, but in Arizona, a weekslong audit is widely seen as a partisan exercise to nurse grievances about Donald J. Trump’s election loss.

The Justice Department will publish guidance explaining the civil and criminal statutes that apply to postelection audits and guidance on early voting and voting by mail, and will work with other agencies to combat disinformation.

Mr. Garland has said that protecting the right to vote is one of his top priorities as attorney general, and his top lieutenants include high-profile voting rights advocates such as Vanita Gupta, the department’s No. 3 official, and Kristen Clarke, the head of the Civil Rights Division.

But that work is made more difficult by a 2013 Supreme Court decision that struck down pieces of the Voting Rights Act that forced states with legacies of racial discrimination to receive Justice Department approval before they could change their voting laws

Friday, June 11, 2021

Attorney General Merrick B. Garland Delivered a Policy Address Regarding Voting Rights

Washington, DC

Remarks as Delivered

There are many things that are open to debate in America. But the right of all eligible citizens to vote is not one of them. The right to vote is the cornerstone of our democracy, the right from which all other rights ultimately flow.

In introducing the 1965 Voting Rights Act, President Johnson told the Congress: “It is wrong – deadly wrong – to deny any of your fellow Americans the right to vote.”

In signing the 1982 reauthorization of the Act, President Reagan stated: “The right to vote is the crown jewel of American liberties, and we will not see its luster diminished.” And in signing the 2006 reauthorization, President Bush stated that, “[t]he right of ordinary men and women to determine their own . . . future lies at the heart of the American experiment.”

This proposition has not, of course, always been accepted. When the Constitution was ratified in 1788, most states limited the right to vote to white men, and often only those white men who owned a certain amount of property.

Since then, constitutional amendments have expanded the franchise. The Fifteenth and Nineteenth Amendments prohibited denying citizens the right to vote on account of race and sex. The Twenty-Fourth Amendment outlawed poll taxes. And the Twenty-Sixth Amendment extended the right to vote to citizens who are 18 or older.

But progress to protect voting rights – and especially for Black Americans and other people of color – has never been steady. Moments of voting rights expansion have often been met with counter-efforts to curb the franchise.

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And actually securing the protections guaranteed by our Constitution and laws has always required vigilant enforcement by Congress, the courts, and the Justice Department.

This department’s role effectively began in the 1870s.

The Reconstruction amendments adopted after the Civil War were a dramatic step forward. The framers of the Fourteenth and Fifteenth Amendments recognized that access to the ballot was a fundamental aspect of citizenship and self-government.

Representative John Bingham – the principal author of the Fourteenth Amendment – called the right to vote the source of all institutions of democratic government.

Bingham and other framers of the Reconstruction amendments also knew that a meaningful right to vote requires meaningful enforcement.

Months after ratification of the Fifteenth Amendment, Congress enacted the first Ku Klux Klan Act. Among other things, that Act prohibited interference with the newly protected right to vote, and it authorized the United States Attorneys and marshals to bring criminal actions against anyone who violated the Act’s provisions.

And only a few weeks after that, Congress created the Department of Justice, and President Grant charged it with enforcing the Act and protecting the rights promised by the Fourteenth and Fifteenth Amendments.

Amos Akerman, the first Attorney General President Grant appointed to lead the new Justice Department, zealously sought to protect Black voting rights, directing U.S. Attorneys that it was their “special duty to initiate proceedings against all violators” of the Ku Klux Klan Act. In the next few years, DOJ lawyers successfully prosecuted hundreds of Ku Klux Klan leaders and others. Those efforts helped to secure a brief period of meaningful Black voting rights in some parts of the former Confederacy.

But, the federal commitment to protecting Black voting rights waned as Reconstruction drew to a close.

In 1866, the Supreme Court severely undercut the department’s enforcement efforts by holding that the First Ku Klux Klan Act exceeded Congress’s power under the Fifteenth Amendment.

Between 1890 and 1908, every southern state enacted a new constitution or amended its constitution to exclude Black voters or significantly impede their participation. The courts did not stand in the way, rejecting every constitutional challenge.

And for the next half-century, no branch of the federal government did much to protect voting rights.

That began to change in the late 1950s, when the Justice Department renewed its efforts to protect the right to vote, and the Supreme Court reestablished judicial oversight of the political process.

In 1957, Congress enacted its first major civil rights statute since Reconstruction. The Civil Rights Act of 1957 – based on a legislative proposal first drafted by this department – enabled the creation of DOJ’s Civil Rights Division and authorized the Attorney General to sue to enjoin voter intimidation or racially-discriminatory denials of the right to vote.

The first case against a county registrar for violating the Act, United States v. Lynd, was brought by John Doar, an attorney who served in the Civil Rights Division during the Eisenhower Administration.

By 1963, the department had filed 35 suits challenging discrimination or threats against Black registration applicants in individual counties. But, as Attorney General Robert Kennedy said, that was a “painfully slow way of providing what is, after all, [a] fundamental right of citizenship.”

As the Supreme Court later acknowledged in South Carolina v Katzenbach, in this effort the department was seriously hindered by the burden of bringing case-by-case challenges.

During the same period, the department successfully urged the Supreme Court to revisit its prior unwillingness to enforce constitutional and statutory protections of the franchise.

In Gomillion v. Lightfoot in 1960, the Supreme Court invalidated the infamous gerrymander of the City of Tuskegee, Alabama, which had redefined the City’s boundaries to exclude 99% of the City’s Black population without removing a single white voter.

And in Reynolds v. Sims, four years later, the Supreme Court established the “one-person, one-vote” principle, holding that the Fourteenth Amendment protects the right of each citizen to have an equally effective voice in the political process.

The legislative branch followed the judiciary, and both followed the Civil Rights Movement that swept the country. In 1965, in the wake of Bloody Sunday and based on a record developed in large part by the Civil Rights Division’s litigation, Congress enacted what President Johnson called “one of the most monumental laws in the entire history of American freedom” – the Voting Rights Act.

The Act was reauthorized and signed by President Nixon in 1970, by President Ford in 1975, by President Reagan in 1982, and by President Bush in 2006.

Under the preclearance requirement of that law, DOJ objected to more than one thousand discriminatory voting changes between 1965 and 2006.

But in recent years, the protections of federal voting rights law have been drastically weakened. In 2013, the Shelby County decision effectively eliminated the preclearance protections of the Voting Rights Act, which had been the department’s most effective tool to protect voting rights over the past half-century.

Since that opinion, there has been a dramatic rise in legislative efforts that will make it harder for millions of citizens to cast a vote that counts. So far this year, at least fourteen states have passed new laws that make it harder to vote. And some jurisdictions, based on disinformation, have utilized abnormal post-election audit methodologies that may put the integrity of the voting process at risk and undermine public confidence in our democracy.

The Civil Rights Division has already sent a letter expressing its concern that one of those audits may violate provisions of the Civil Rights Act that require election officials to safeguard federal election records – the very same provisions that formed the original basis for the department’s 1960 investigation in the Lynd case. The division also expressed concern that the audit may violate a provision of the Voting Rights Act that bars intimidation of voters.

As part of its mission to protect the right to vote, the Justice Department will, of course, do everything in its power to prevent election fraud and, if found, to vigorously prosecute it.

But many of the justifications proffered in support of these post-election audits and restrictions on voting have relied on assertions of material vote fraud in the 2020 election that have been refuted by law enforcement and intelligence agencies of both this Administration and the previous one, as well as by every court – federal and state – that has considered them.

Moreover, many of the changes are not even calibrated to address the kinds of voter fraud that are alleged as their justification.

To meet the challenge of the current moment, we must rededicate the resources of the Department of Justice to a critical part of its original mission: enforcing federal law to protect the franchise for all voters.

In 1961, Attorney General Robert Kennedy called into his office the newly appointed Assistant Attorney General for Civil Rights, Burke Marshall; and Marshall’s now First Assistant, John Doar. At that time, before the 1965 Act with its preclearance provision was enacted, the only way to guarantee the right of Black Americans to vote was to bring individual actions in each county and parish that discriminated against them.

Kennedy told his assistants that was what he wanted to do. “Well General,” Burke Marshall replied, “if you want that, we’ve got to have a lot more lawyers.”

Well, today we are again without a preclearance provision. So again, the Civil Rights Division is going to need more lawyers. Accordingly, today I am announcing that – within the next thirty days – we will double the division’s enforcement staff for protecting the right to vote.

We will use all existing provisions of the Voting Rights Act, the National Voter Registration Act, the Help America Vote Act, and the Uniformed and Overseas Citizens Absentee Voting Act to ensure that we protect every qualified American seeking to participate in our democracy.

We are scrutinizing new laws that seek to curb voter access, and where we see violations, we will not hesitate to act.

We are also scrutinizing current laws and practices in order to determine whether they discriminate against Black voters and other voters of color. Particularly concerning in this regard are several studies showing that, in some jurisdictions, nonwhite voters must wait in line substantially longer than white voters to cast their ballots.

We will apply the same scrutiny to post-election audits, to ensure they abide by federal statutory requirements to protect election records and avoid the intimidation of voters.

In that regard, we will publish guidance explaining the civil and criminal statutes that apply to post-election audits.

And we will likewise publish guidance with respect to early voting and voting by mail.

And because the upcoming redistricting cycle will likely be the first since 1960 to proceed without the key preclearance provisions of the Voting Rights Act, we will publish new guidance to make clear the voting protections that apply to all jurisdictions as they redraw their legislative maps.

Under the supervision of the Deputy and Associate Attorneys General, the department will implement its responsibility under Presidential Executive Order 14019, Promoting Access to Voting. Those include ensuring access to voter registration for eligible individuals in federal custody. They also include assisting other federal agencies in expanding voter registration opportunities, as permitted by law.

We will also work with Congress to provide all necessary support as it considers federal legislation to protect voting rights. Although we will not wait for that legislation to act, we must be clear-eyed: the Shelby County decision eliminated critical tools for protecting voting rights. And, as the President has said, we need Congress to pass S.1 and the John Lewis Voting Rights Act, which would provide the department with the tools it needs.

We will also partner with other federal agencies to combat election disinformation that intentionally tries to suppress the vote.

Finally, we have not been blind to the dramatic increase in menacing and violent threats against all manner of state and local election workers, ranging from the highest administrators to volunteer poll workers. Such threats undermine our electoral process and violate a myriad of federal laws.

The Criminal Section of the Civil Rights Division, together with the department’s National Security and Criminal Divisions, the 93 United States Attorneys, and the FBI, will investigate and promptly prosecute any violations of federal law.

Nearly two and a half centuries into our experiment of “government of the people, by the people, for the people,” we have learned much about what supports a healthy democracy.

We know that expanding the ability of all eligible citizens to vote is the central pillar. That means ensuring that all eligible voters can cast a vote; that all lawful votes are counted; and that every voter has access to accurate information. The Department of Justice will never stop working to protect the democracy to which all Americans are entitled.

In an editorial published after his death, the great John Lewis recalled an important lesson taught by Dr. Martin Luther King Jr.:

“He said each of us has a moral obligation to stand up, speak up and speak out. When you see something that is not right, you must say something. You must do something. Democracy is not a state. It is an act, and each generation must do its part ….”

Thanks to all of your work, the Department of Justice will always stand up to ensure the survival of the central pillar of our democracy. Thank you.

Speaker: 

Attorney General Merrick B. Garland

Attachment(s): 

Download Fact Sheet on AG Garland’s Voting Rights Address.pdf

Topic(s): 

Civil Rights

Component(s): 

Office of the Attorney General

Department of Justice
Office of Public Affairs

 

Judge orders two lawyers who filed suit challenging 2020 election to pay hefty fees: ‘They need to take responsibility’

By Rosalind S. Helderman

November 23, 2021 
[Excerpts:]

A federal judge has ordered two Colorado lawyers who filed a lawsuit late last year challenging the 2020 election results to pay nearly $187,000 to defray the legal fees of groups they sued, arguing that the hefty penalty was proper to deter others from using frivolous suits to undermine the democratic system.

“As officers of the Court, these attorneys have a higher duty and calling that requires meaningful investigation before prematurely repeating in court pleadings unverified and uninvestigated defamatory rumors that strike at the heart of our democratic system and were used by others to foment a violent insurrection that threatened our system of government,” Magistrate Judge N. Reid Neureiter wrote.

The two argued that a scheme was engineered by the voting machine vendor Dominion Voting Systems; the tech company Facebook, its founder Mark Zuckerberg and his wife, Priscilla Chan; and elected officials in four states. They had sought $160 billion in damages. (Boldface added]

Their case was dismissed in April. In August, Neureiter ruled that the attorneys had violated their ethical obligations by filing it in the first place, arguing that the duo had run afoul of legal rules that prohibit clogging the courts with frivolous motions and lodging information in court that is not true. At the time, he called their suit “the stuff of which violent insurrections are made,” alleging they made little effort to determine the truth of their conspiratorial claims before filing them in court. He ordered them to pay the legal fees of all of the many entities they had sued.


More Audit Mania: In GEORGIA:

From TPM, The Franchise: What you need to know about voting rights and democracy in America

By Matt Shuman

06/29/21

Subscribe: https://talkingpointsmemo.com

 Amy Kremer, chair of Women for America First and organizer of the Jan. 6 Trump rally in D.C. that turned into an insurrection, recently announced an “Election Integrity Town Hall” in Fulton County, Georgia featuring two state lawmakers who recently toured the Arizona audit, alongside Jenna Ellis, who represented the Trump campaign during its effort to overturn the 2020 election. In the same county, a judge rejected a lawsuit seeking a close-up inspection of tens of thousands of ballots from Fulton County. The plaintiffs will be stuck with digital images, which will make it harder for them to use the super-secret fake-vote-detecting software of Jovan Pulitzer, the CueCat inventor and failed treasure hunter who’s been working with the plaintiffs.

 

Ultra-Conservative U.S. Supreme Court Faces the Test: Are We a A Republic or Not? 

 

“Supreme Court declines to decide if vote-by-mail restrictions discriminate in some states”

USA Today:

The Supreme Court on Monday declined to decide if states that automatically let senior citizens vote by mail must let younger voters do the same, an issue that could affect millions of voters…..

Seven states – Texas, Indiana, Kentucky, Louisiana, Mississippi, South Carolina and Tennessee – allow older voters to request an absentee ballot for any reason but let others do so only under certain circumstances.  

The court on Monday rejected a challenge to these rules brought by three voters in Texas, just as it rejected a similar challenge in 2021 to Indiana’s voting rules. It also twice declined to hear earlier versions of the Texas suit brought by the Texas Democratic Party during the pandemic.

The challengers argued that the unequal treatment of voters is age-based discrimination prohibited by the 26th Amendment.

 

“The Supreme Court and Young Voter Turnout”

NYT:

Georgia, with its long history of the suppression of Black voters, has been ground zero for fights about voting rights laws for decades. The state has often seen stark differences in turnout between white and nonwhite communities, with the latter typically voting at a much lower rate.

But not always: In the 2012 election, when Barack Obama won a second term in the White House, the turnout rate for Black voters under 38 in Lowndes County — a Republican-leaning county in southern Georgia — was actually four percentage points higher than the rate for white voters of a similar age.

It proved to be temporary. According to new research by Michael Podhorzer, the former political director of the A.F.L.-C.I.O., by 2020, turnout for younger white voters in Lowndes was 14 percentage points higher than for Black voters of the same age.

What happened in between? It is impossible to tell for certain, with many variables, such as Obama no longer being on the ballot.

But a growing body of evidence points to a pivotal 2013 Supreme Court decision, Shelby County v. Holder, that knocked down a core section of the Voting Rights Act. The court effectively ended a provision requiring counties and states with a history of racial discrimination at the polls — including all of Georgia — to obtain permission from the Justice Department before changing voting laws or procedures.

[Boldface added]
The slow dismantling of the Voting Rights Act
UNDER SIEGE — A federal appeals court recently dealt a blow to the Voting Rights Act by ruling on what at first glance might seem a small technicality: Who, exactly, is allowed to sue when voting practices discriminate on the basis of race?But the issue in Arkansas State Conference NAACP v. Arkansas Board of Apportionment is anything but minor. The court’s ruling that there is no “private right of action” under Section 2 of the law — which prohibits voting practices that discriminate on the basis of race — would limit the scope of its protections and roll back enforcement of the landmark civil rights law.It’s a decision that stands to have a wide-ranging impact in the future, including prominently in House races — as recently as June, for example, a Section 2 case ended up altering the Alabama congressional map for 2024.The ruling overturns a standard practice of four decades in which outside groups like the ACLU and NAACP could litigate Section 2 challenges. The decision from the 8th Circuit holds that only the federal government should carry such power.Here’s why that matters: Out of at least 182 successful Section 2 lawsuits filed over the last 40 years, only 15 “were brought solely” by the attorney general. Private groups have filed Section 2 cases and won time and time again — including in Allen v. Mulligan, the Alabama case in which the Supreme Court affirmed a lower court ruling that the state likely violated the law by diluting the power of Black voters when it drew its congressional map after the 2020 census. Ultimately fewer lawsuits will be filed because of the Eighth Circuit’s decision — not because the issues have been remedied, but because they aren’t being acted on at the federal level.Major organizations like the NAACP and ACLU have resources and personnel dedicated to ensure equal access to voting rights. The Justice Department simply doesn’t have the same level of oversight as local grassroots organizations do due to limited resources, which means it is likely issues will fall through the cracks, according to Alejandra Campos, who is an assistant professor of political science at the University of Arkansas.“At the very least, I think it signals to people that they don’t have the right to bring up any grievances that they have about electoral procedures, or what they might perceive as something that is disproportionately affecting their community,” Campos said. “They signal that, ‘We decide what is a bridging your vote or not, and you don’t have that voice anymore.’”There’s also concern about the further politicization of these cases. Because the Justice Department will have complete discretion on whether or not to file a suit, who’s in the White House and has staffed the agency will become more important than ever.The court’s decision in Arkansas was used to dismiss a redistricting case filed by advocacy groups that claimed a new map would dilute the voting power of Black people. These private groups’ right to file Section 2 lawsuits rested on “flimsy footing” to begin with, according to the 8th Circuit judges.Arkansas Attorney General Tim Griffin, whose office had been defending the map, applauded the decision, saying that enforcement of the Voting Rights Act should be handled by “politically accountable officials and not by outside special interest groups.”Yet by eliminating private groups’ right to sue entirely — and setting up the federal government to be the sole protector of voting rights — the decision will undermine “the Voting Rights Act’s promise of equal participation in the democratic process for all Americans,” according to Holly Dickson, executive director of ACLU of Arkansas.In recognition of such limitations, Chief Circuit Judge Lavenski Smith, an appointee of former President George W. Bush, wrote in his dissent, “Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection.”Ultimately, this decision fits into a trend of blows to the Voting Rights Act over the last 10 years. In 2013, the Supreme Court gutted Section 5 of the VRA, which required the Department of Justice or a federal district court to vet any voting procedure changes proposed by states and local municipalities with a history of discrimination. Since then, 11 states that had been subject to preclearance — the process of seeking DOJ approval for all changes related to voting — have passed at least 29 laws that add voting restrictions.The legal fight will likely head to the Supreme Court, and two conservative justices — Neil Gorsuch and Clarence Thomas — have already shown their hand. In a 2021 Voting Rights Act case, Gorsuch wrote in his concurring opinion, joined by Thomas, that the matter of who can bring forth Section 2 cases is an “open question.” [Boldface added]

 

“‘Plain historical falsehoods’: How amicus briefs bolstered Supreme Court conservatives”

From Politico:

A POLITICO review of tax filings, financial statements and other public documents found that Leo and his network of nonprofit groups are either directly or indirectly connected to a majority of amicus briefs filed on behalf of conservative parties in seven of the highest-profile rulings the court has issued over the past two years.

It is the first comprehensive review of amicus briefs that have streamed into the court since Trump nominated Justice Amy Coney Barrett in 2020, solidifying the court’s conservative majority. POLITICO’s review found multiple instances of language used in the amicus briefs appearing in the court’s opinions.

The Federalist Society, the 70,000-member organization that Leo co-chairs, does not take political positions. But the movement centered around the society often weighs in through many like-minded groups. In 15 percent of the 259 amicus briefs for the conservative side in the seven cases, Leo was either a board member, official or financial backer through his network of the group that filed the brief. Another 55 percent were from groups run by individuals who share board memberships with Leo, worked for entities funded by his network or were among a close-knit circle of legal experts that includes chapter heads who serve under Leo at the Federalist Society.

The case concerned a constitutional puzzle: how to distinguish the roles of race and partisanship in drawing voting maps when Black voters overwhelmingly favor Democrats.

https://www.nytimes.com/2023/10/11/us/politics/supreme-court-south-carolina-voting-map

[Excerpt:]

Several members of the Supreme Court’s conservative majority seemed prepared on Wednesday to reinstate a South Carolina voting map that a lower court had ruled was an unconstitutional racial gerrymander.

Chief Justice John G. Roberts Jr., for instance, seemed unpersuaded by the lower court’s findings and reasoning. He said the evidence that Republican state lawmakers had used race as the predominant factor was circumstantial and consistent with something that is legally acceptable: trying to achieve the partisan goal of creating a district with a distinct conservative tilt.

“Disentangling race and politics in a situation like this is very, very difficult,” he said. A ruling for the challengers, he added, “would be breaking new ground in our voting rights jurisprudence.”

The case concerned a constitutional puzzle: how to distinguish the roles of race and partisanship in drawing voting maps when Black voters overwhelmingly favor Democrats. The difference matters because the Supreme Court has said that only racial gerrymandering may be challenged in federal court under the Constitution.

The case, Alexander v. South Carolina State Conference of the N.A.A.C.P., No. 22-807, is superficially similar to one from Alabama in which the court ruled in June that state lawmakers had diluted the power of Black voters in drawing a congressional voting map. But the two cases involve distinct legal principles.

The Alabama case was governed by the Voting Rights Act, the landmark civil rights statute, and the one from South Carolina by the Constitution’s equal protection clause. The two can tug in opposite directions.

A unanimous three-judge panel of the Federal District Court in Columbia, S.C., ruled in January that the state’s First Congressional District, drawn after the 2020 census, violated the Constitution by making race the predominant factor.

Justice Elena Kagan said the ruling was sound, even though the lawmakers were free to achieve their political goals directly by using data on partisan voting. What they could not do, she said, was achieve those goals indirectly, by using data on race. She told a lawyer for the lawmakers that “the evidence showed that you were using race as a proxy for politics.”

She added that the practice was a curious one. “Why would mapmakers, in general and in this case, use race as a proxy to do partisan gerrymandering now that you could just, like, do partisan gerrymandering?” she asked.

The answer, she suggested, was that data on racially polarized voting may be more reliable than data about given election results in predicting a new district’s partisan tilt. The racial data relied on in South Carolina, she said, may produce a more secure Republican gerrymander. [Boldface added]

Louisiana Argues that the District Court Considering Voting Rights Challenge to Louisiana Congressional Redistricting Should Consider if Section 2 of the Voting Rights Act is No Longer Constitutional

Yup, there it is (via Hansi Lo Wang):

[The Supreme Court’s affirmative action decision in] SFFA has considerably altered the landscape of cases, such as this one, that involve state action requiring racial classifications. 2023 WL 4239254, at *12 (“Eliminating racial discrimination means eliminating all of it.”). Indeed, the SFFA Court made clear that as statutes requiring race-based classification achieve their intended ends, they will necessarily become obsolete. See id. at *14–21 (explaining that Grutter v. Bollinger, 539 U. S. 306 (2003), “made clear that race-based admissions programs eventually had to end” and that the instant facts demonstrated that the time had come). And we have seen similarly once-permissible racial classifications be held unconstitutional when the facts justifying their existence were no more—specifically in the Voting Rights Act (“VRA”) context. See Shelby Cnty. v. Holder, 570 U.S. 529, 557 (2013) (holding part of the VRA unconstitutional because “[o]ur country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions”). Consequently, the district court should be permitted to address, in the first instance, whether the facts on the ground here similarly warrant a rejection of Section 2 of the VRA, as applied, because it is no longer necessary. See id. at 536 (“[C]urrent burdens . . . must be justified by current needs.” (quoting Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009))).

Notably, this temporal argument was acknowledged by members of the Milligan Court but, because it was not properly raised, the Court did not consider it. 143 S. Ct. at 1519 (Kavanaugh, J., concurring) (“Justice Thomas notes, however, that even if Congress in 1982 could constitutionally authorize race-based redistricting under §2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future. See post, at 1543–1544 (dissenting opinion). But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.”). Indeed, eight Justices in Milligan appeared to conclude that the first Gingles precondition cannot be satisfied where race is the predominant factor in the creation of an illustrative comparator. See 143 S. Ct. at 1510–12; id. at 1527 (Thomas, J., dissenting). That predominance test is essential to mitigate the problem of race-based classifications identified in SFFA, and the district court should address the interplay of these decisions, as applied to this case, in the first instance on remand.

As I wrote recently at Slate:

The first attack is a separate constitutional one from the one that failed in Milligan. In Roberts’ Milligan majority opinion, the court upheld Section 2’s constitutionality against Alabama’s claim that Congress only has the power to ban intentional discrimination, not just those voting laws with discriminatory effects. Citing earlier precedents, the court concluded that Congress had the power through the 15th Amendment to dismantle laws with racially discriminatory effects as well.

Despite that holding, Justice Kavanaugh, writing separately, left the door open for a future constitutional challenge. Kavanaugh described that argument, raised by Justice Clarence Thomas in his dissent, that “even if Congress in 1982 could constitutionally authorize race-based redistricting under §2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future.” Kavanaugh wouldn’t reach the question in his separate opinion, but left it open: “Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.”

This argument that a law once constitutional is no longer so because of the passage of time echoes the court’s 2013 decision in Shelby County v. Holder, authored by Chief Justice Roberts, reaching the same conclusion about a different part of the Voting Rights Act, Section 5. As voting rights expert Ellen Katz opined on my site, the Election Law Blog, “Justice Kavanaugh said he was declining to consider this argument ‘at this time’ because Alabama had failed to press it. But the invitation was, of course, clear: bring this claim and the Allen dissenters might just have a majority in the next case. In other words, stay tuned.”

Would Kavanaugh (or even Roberts) switch back again and pull a Shelby County in a few years? It is hard to say, but Roberts at least offered a surprisingly full-throated endorsement of current Section 2 jurisprudence, and having pronounced Section 2 constitutional without alluding to or even citing the argument in Shelby County that the passage of time could render the law now unconstitutional, it seems hard to imagine him reversing course so soon. What Kavanaugh might do should such an opportunity arise is a separate question, of course.

 

“The Supreme Court’s Voting Rights Act ruling is no victory for democracy”

Melissa Murray and Steve Vladeck in WaPo:

The Supreme Court’s unexpected decision on Thursday to keep Section 2 of the Voting Rights Act intact was greeted with relief — even giddiness — among many in the media. Some even hailed it as a “victory” for the act.

They are right, up to a point. Yes, the court’s conservative supermajority failed to undermine voting rights. But this is not an unalloyed victory.

As an initial matter, the decision does not strengthen the act, as some pundits claimed. It merely preserves the status quo. And the status quo is that this court, over the past 10 years, has severely hobbled the law and its protections for minority voters….

The court made its antipathy toward voting rights even more clear in how it handled the case. At the heart of the controversy was the congressional map that Alabama drew in 2021 in response to the 2020 Census. Though roughly 2 in 7 Alabamians are Black, the state’s legislature packed most of the state’s Black voters into one House district (out of seven). Civil rights groups cried foul, prompting Black voters represented by the NAACP Legal Defense Fund and the American Civil Liberties Union to sue using Section 2, arguing the map was an unlawful racial gerrymander.

Two lower federal courts agreed, instructing Alabama to redraw its map before the 2022 midterm elections. The state appealed those rulings and asked the Supreme Court for an emergency stay of the district court ruling that instructed the state to redraw the map. The “emergency” Alabama relied upon was the dubious (if not entirely specious) claim that it was too close to the election to force the state to redraw its congressional districts.

In an unsigned, unexplained February 2022 order, the court acquiesced by a 5-4 vote. That ruling cleared the way for Alabama’s unlawful map — which a different 5-4 majority blocked on Thursday — to be used in November’s elections.

This intervention in Alabama produced direct and indirect effects in other states, as well. In June, the justices likewise put back into effect the congressional maps drawn by the Louisiana legislature even though a district court invalidated them for the same reasons as the Alabama courts — a ruling the ultraconservative U.S. Court of Appeals for the 5th Circuit declined to disturb. And in Georgia, a district judge who also believed that the state had drawn congressional maps in violation of Section 2 nevertheless refused to block the maps — entirely because the Supreme Court had put the Alabama maps back into effect.

Here’s the response of Deuel Ross, one of the lawyers for the successful plaintiffs, who calls Milligan a “HUGE victory for democracy:”

 

On voting rights, the justices followed the law. Shouldn’t be news, but it is.

https://www.washingtonpost.com/opinions/2023/06/09/supreme-court-voting-rights-ruth-marcus/

[Excerpt:]

It is imperative to call out the conservative majority’s radicalism for what it is. And let’s not get carried away. What passes for a win here is preserving the status quo. Still, when the conservative juggernaut falters, when the three remaining liberals are able to cobble together a victory, it is important to pause — to savor the moment, praise the restraint and ponder how it happened.

The main remaining power of the landmark 1965 law, over racial bias in political mapmaking, gets an unexpected buttressing from a court that had been weakening the law for years.

Reporting from Washington on voting rights issues

[Excerpt:]

The Supreme Court’s surprising decision on Thursday to effectively reaffirm the remaining powers of the 1965 Voting Rights Act has halted, at least for the foreseeable future, the slide toward irrelevance of a landmark civil rights law that reshaped American politics.

In 2013, Chief Justice John G. Roberts Jr. wrote an opinion that effectively gutted the heart of the act, a provision that gave the Justice Department a veto over changes in election procedures in states with histories of racial bias in elections. Two years ago, an opinion written by Justice Samuel Alito greatly weakened the law’s authority over polling rules that reduced the clout of minority voters.

Supporters of the act expected the court to take an ax to the law’s chief remaining authority, over political maps, in the latest case, Allen v. Milligan — a suit charging that Alabama had drawn its seven congressional districts to illegally limit Black voters’ influence to a single House seat.

Instead, Chief Justice Roberts, writing for the majority in a 5-to-4 ruling, reaffirmed the law’s authority over racially biased maps and the arcane structure of legal precedents and court tests that underpin it.

“How a Fringe Legal Theory Became a Threat to Democracy”

Andrew Marantz for the New Yorker on the independent state legislature theory:

If the Supreme Court reverses the state-court ruling, it would be a vindication of the independent-state-legislature theory, or I.S.L.T., a line of legal reasoning that scarcely existed twenty-five years ago but has since travelled from the fringes of legal discourse to the centers of power. Some advocates of the theory interpret a clause of the Constitution to mean that state legislatures can run federal elections almost however they choose—drawing maps for partisan advantage, outlawing forms of voting (such as mail-in ballots) that tend to favor one party, and challenging election results on thin procedural grounds. Even when these actions violate state constitutions, the advocates say, state courts would be powerless to stop them. (It’s this lack of oversight that would render the legislatures “independent,” though a less euphemistic word for it might be “rogue.”) . . .

The independent-state-legislature theory ultimately boils down to a single word: “legislature.” It appears in two relevant places in the Constitution—the Elections Clause, which pertains to how federal elections are administered, and the Electors Clause, regarding the appointment of Presidential electors. Both processes are to be directed in “each State” by “the Legislature thereof.” Benjamin Ginsberg, the Bush-Cheney campaign’s national counsel, told me that, in 2000, I.S.L.T. “was never our main focus. It was one of many things we were flinging against the wall.” John Bolton, one of the Bush campaign’s lawyers, who later served as national-security adviser under Trump, told me, “I don’t know that we fully thought through the future implications. It was more, The clock is ticking. What else can we try?” . .

To the extent that there is serious scholarship buttressing I.S.L.T., much of it has been promulgated by one guy, an associate professor at Florida State University named Michael Morley. He graduated from Yale Law School in 2003, clerked for a conservative circuit-court judge, and has since attended dozens of Federalist Society events. Morley did not submit an amicus brief in Moore v. Harper; reached recently by e-mail, he wrote that he has “consistently and publicly criticized attempts to cast doubt on the outcome of the 2020 Presidential election.” A law professor who knows Morley told me, “I don’t think he’s a total wing nut. I think he found an interesting academic argument that no one else was making, and the work he did on it has been important to his career, so now he can’t fully walk away from it, but he can’t fully defend it, either.” Law journals are full of provocative thought experiments. They all seem like fun and games until someone uses one to justify an insurrection.

 

 

“The Supreme Court has an electoral ‘bomb’ on its hands. Will it defuse it before 2024?”

Politico explores the issues for the 2024 election raised by the North Carolina Supreme Court’s recent decision which likely moots Moore v. Harper. Justin Levitt extensively quoted along with Marc Elias.

 

“After the Oral Argument in Moore v. Harper”

Michael Weingartner & Carolyn Shapiro have posted this draft on SSRN (forthcoming, U. Toledo L. Rev.). here is the abstract:

The debate over the so-called independent state legislature theory (“ISLT”) is evolving. Some proponents of the theory have proposed a maximalist version of the theory, which posits that state legislatures exercise plenary authority over both congressional and presidential elections, unconstrained by state constitutions. But some applications of that approach have already been rejected by the Supreme Court. Longstanding precedent provides, for example, that a state constitution’s lawmaking procedures apply to laws governing federal elections, even when those procedures incorporate actors besides the legislature. As a result, when the Supreme Court heard oral argument in Moore v. Harper, a pending case that addresses the ISLT, much of the discussion focused on whether those precedents could be distinguished in a way that allowed for a narrower form of the ISLT.

Although most of the Justices seemed skeptical about the maximalist version of the ISLT, and the petitioners themselves did not ask the Court to overrule its precedents, many Justices also seemed reluctant to fully reject the ISLT. Such a rejection might eliminate any possibility of federal court review of any state court decision reviewing, construing, or applying state laws governing federal elections where such decisions focus solely on the meaning of state statutes and state constitutional provisions. Even the respondents did not ask the Court to adopt that view. As a result, regardless of which party prevails in Moore, the door may well still be open for ISLT arguments in other cases.

This short article evaluates at least some of the versions of the ISLT discussed at oral argument, largely from the perspective of our previous writing about the ISLT, and we argue that there is little to no textual, historical, or doctrinal basis even for the more limited versions of the theory and that such an approach would be nearly as destabilizing to settled law, practice, and expectations, as the maximalist version. Finally, we argue that any residual federal court power of review is narrow, but is not non-existent, and arises from other provisions of the federal constitution, most notably the Due Process Clause. And a focus on the Due Process Clause requires a different kind of analysis than the various versions of the ISLT, one that is less disruptive and more focused on actual practice and the expectations of voters, campaigns, and candidates.

 

“How a Supreme Court justice’s paragraph put the Voting Rights Act in more danger”

Hansi Lo Wang for NPR:

The roots of the next potential U.S. Supreme Court showdown that could further weaken the Voting Rights Act’s protections against racial discrimination can be traced to a handful of sentences by Justice Neil Gorsuch.

In the summer of 2021, Gorsuch — the first Supreme Court appointee by former President Donald Trump — tacked a single-paragraph concurring opinion onto a major court ruling to “flag one thing.”

The ruling was for a lawsuit about Section 2 of the Voting Rights Act.

And the “thing” Gorsuch wanted to flag was a question he said no one in the case had raised before the court: Who has the right to sue to try to enforce that key section of the landmark law?

For decades, private individuals and groups, who did not represent the federal government, have filed the majority of Section 2 lawsuits that have stopped state and local governments from minimizing the political power of people of color through the redrawing of voting maps and other steps in the elections process.

But that longstanding practice may be coming to an end.

 

With Petition for Rehearing Filed in (Republican-Majority) North Carolina Supreme Court, Could SCOTUS Decision in Moore v. Harper Become Moot?

Back on November 9, I wrote:

Could the Flipping of the North Carolina Supreme Court to Republican Control Moot the Moore v. Harper Case about the Independent State Legislature Doctrine?

With news that the North Carolina Supreme Court has flipped to Republican control, there is a good chance that the this court’s holding that partisan gerrymandering violates the state constitution will be overturned. That ruling will allow Republicans to draw a partisan gerrymander of North Carolina’s congressional districts in time for the 2024 elections.

But it also may moot Moore v. Harper, the big “independent state legislature”/Elections Clause case. That case argues that the North Carolina’s ruling violated the power of the state’s general assembly to decide on the shape of congressional districts.

There have been a ton of amicus briefs filed (including my own) and oral arguments are set for December 7. Not clear to me how quickly a case could make it to the state Supreme Court to cause it to reconsider its partisan gerrymandering ruling, and if there might be an incentive to hold those suits to get a ruling from the U.S. Supreme Court on this issue.

Now, via Democracy Docket, comes this this petition for rehearing in the North Carolina Supreme Court in the remedial phase of the Harper case involving the maps. The case specifically asks for the original holding—-that the North Carolina congressional districts are an unconstitutional partisan gerrymander under the state constitution—be overturned.

If that case is overturned before the Supreme Court decides Moore, it seems to me that it likely moots the case.

Indeed, I wonder if SCOTUS will delay deciding this case if the NC Supreme Court grants rehearing.

I don’t know that the NC court would do so. As Marc Elias argues, doing so would be a radical act. But it could happen and then call into question whether we will find out the vitality of the independent state legislature theory or not in Moore.

 

Eighth Circuit considers whether the Voting Rights Act allows private parties to sue under Section 2

An Eighth Circuit panel recently heard oral argument (MP3) in Arkansas State Conference NAACP vs. Arkansas Board of Apportionment. It’s an appeal from a district court decision concluding that private parties may not sue under Section 2 of the Voting Rights Act; only the United States may initiate claims.

The three judges hearing the argument were Chief Judge Lavenski Smith, Judge Raymond Gruender, and Judge David Stras. There’s a lot to unpack from the oral argument. It’s quite possible that the district court’s decision will be upheld, and the Supreme Court will be asked to take up the case in the next year. It makes the topics unearthed at oral argument ripe subjects for academic scholarship in the months ahead. (You can of course find much more detail in the briefs, but the argument highlighted, I think, some of the most salient issues for this panel.)

Precedent. The appellants leaned heavily on precedent to try to dissuade the Eighth Circuit from finding it even had the flexibility to determine the issue. Three cases highlight the issue.

First, in Mobile v. Bolden (1980), a four-justice plurality of the Court included the line, “Assuming, for present purposes, that there exists a private right of action to enforce this statutory provision” in a discussion about Section 2. It flagged that it had not expressly decided the issue, but it had assumed so in the past and would continue to do so in this case (with a “but see” citation in a footnote to cases where it had recently, at that time, refused to find a private right of action) .

Second, in Morse v. Republican Party of Virginia (1995), a majority of the Court concluded that private parties could sue under Section 10 of the Voting Rights Act. From Justice Stevens’s two-justice plurality (lightly edited):

Congress has not only ratified Allen‘s construction of § 5 in subsequent reenactments, see H. R. Rep. No. 91-397, p. 8 (1970), but extended its logic to other provisions of the Act. Although § 2,like § 5, provides no right to sue on its face, “the existence of the private right of action under Section 2. . . has been clearly intended by Congress since 1965.” S. Rep. No. 97-417, at 30 (citing Allen ); see also H. R. Rep. No. 97-227, p. 32 (1981). We, in turn, have entertained cases brought by private litigants to enforce § 2. See, e. g., Chisom v. Roemer, 501 U. S. 380 (1991); Johnson v. De Grandy, 512 U. S. 997 (1994). It would be anomalous, to say the least, to hold that both § 2 and § 5 are enforceable by private action but § 10 is not, when all lack the same express authorizing language.

And from Justice Breyer’s three-justice concurrence in the judgment (lightly edited):

Finally, I agree with Justice Stevens that Congress must be taken to have intended to authorize a private right of action to enforce § 10 of the Act. He explains that the rationale of Allen v. State Bd. of Elections, 393 U. S. 544, 556-557 (1969) (Congress established private right of action to enforce § 5), applies with similar force not only to § 2 but also to § 10. Cf. S. Rep. No. 97-417, pt. 1, p. 30 (1982) (implied private right of action to enforce § 2 “has been clearly intended by Congress since 1965”). The differences in statutory language and structure between §§ 5 and 10 are not determinative. In addition, I do not know why Congress would have wanted to treat enforcement of § 10 differently from enforcement of §§ 2 and 5, particularly after 1975. In that year, Congress focused on § 10, deleted the then-obsolete § 10(d), made technical amendments to § 10(b), and thereby indicated its belief that § 10 remained an important civil rights provision. Pub. L. 94-73, § 408, 89 Stat. 405. See also S. Rep. No. 94-295, pp. 40-41 (1975) (reiterating general importance of private enforcement of Act); H. R. Report No. 94-196, pp. 33-34 (1975) (same). For these reasons, I believe Congress intended to establish a private right of action to enforce § 10, no less than it did to enforce §§ 2 and 5.

Finally, in 2021, Justice Gorsuch, joined by Justice Thomas, concurred in Brnovich v. Democratic National Committee with this statement (lightly edited):

I join the Court’s opinion in full, but flag one thing it does not decide. Our cases have assumed—without deciding—that the Voting Rights Act of 1965 furnishes an implied cause of action under § 2. See Mobile v. Bolden, 446 U.S. 55, 60, and n. 8 (1980) (plurality opinion). Lower courts have treated this as an open question. E.g., Washington v. Finlay, 664 F.2d 913, 926 (C.A.4 1981). Because no party argues that the plaintiffs lack a cause of action here, and because the existence (or not) of a cause of action does not go to a court’s subject-matter jurisdiction, this Court need not and does not address that issue today.

The appellants argued that many courts had found an implied right of action, but Judge Stras pressed whether any Supreme Court decision or Eighth Circuit decision had found so. Appellants pressed Morse as their strongest case. Judge Stras called it “very learned dicta,” as the issue in that case was about the right of action for Section 10, not Section 2. Appellants could not cite a case where the issue had been squarely presented to the Court to address. But later in the argument Judge Gruender whether the language in Morse was actually dicta–that is, the Court’s decision in Morse on Section 10 seemed to require reading it in pari materia with Section 2, which would make it essential. The appellees noted that the separate opinion in Brnovich among others suggests that the Court has erroneously assumed it.

If the Court finds Morse is binding, the district court’s decision could be quickly reversed. Regardless, if the case goes to the Supreme Court, the Court might be asked to take up a meta-threshold question of whether Morse is binding precedent, and if it is a stare decisis question arises.

Text. In 2001, the Supreme Court offered a new approach to construing statutes to determine whether a private right of action exists. Justice Scalia in Alexander v. Sandoval explained that courts should look for two things in the statute: does it contain a “private right,” in “rights-creating” language; and does it provide for a “private remedy.” The focus in Sandoval, the Court explained, was a “search for Congress’s intent” that could “begin” and “end” with “the text and structure” of the statute. (This approach even applies, as it did in 2001, to statutes enacted during a previous era when Congress might have presumed the judiciary was more willing to find causes of actions implied in statutes.”

On the rights side, Judge Stras suggested that the Voting Rights Act pretty clearly speaks in terms of rights. Section 2(a) of the Voting Rights Act speaks expressly of the “right . . . to vote.” Appellees, however, pointed out that Section 2(b) not of an individual right, but of a collective right, as in, whether the political processes were “equally open to participation by members of a class of citizens.”

On the remedy, the language in Section 3 includes phrases like, “If in a proceeding instituted by the Attorney General or an aggrieved person under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment in any State . . . .” Judge Stras briefly wondered whether “any aggrieved person” was sufficiently explicit but seemed to concede later it would be. But a dispute arose about whether it’s really just the Fourteenth and Fifteenth Amendments, or can include statutory guarantees like Section 2. Appellees (as the district court below) noted the language seems fixed on the Constitution’s rights, not statutory rights, and therefore there’s no private remedy. In contrast, appellants point out in briefing that the language includes statute “to enforce the voting guarantees,” which is more than just those constitutional amendments. Furthermore, Section 3 later goes on to note actions that may flow, like those upon a finding that law was enacted “for the purpose or with the effect of denying or abridging the right of any citizen of the United States to vote.” The “effect” can only come from a statute, as the Court had concluded ahead of amendments to Section 2 that the constitutional amendments extended only to intentional discrimination.” The implication from the text, then, is that the private right of action extends to both constitutional and statutory violations.

Congressional Ratification. Judge Smith in particular pressed the question on congressional ratification. After Bolden in 1980, Congress amended the Voting Rights Act in 1982 and again in 2006. Private rights of action were assumed in Bolden and in other cases, and Congress did not try to remove them. Indeed, a Senate committee report (cited in Morse) approved of the private right of action. Appellees pressed that of course a Senate report is no substitute for the text of the statute, and that the inference after Bolden should be read the other way: that is, the question is whether Congress unambiguously created the private right of action, and its silence after the issue was expressly noted in Bolden suggests it did not do so, and its actions in other areas of the statute, which did not touch the private right of action, suggest no such desire to create a private right of action. Appellants did point out that Congress’s 2006 action could be construed after Morse as a tacit endorsement. How to line up this timeline, and the inferences drawn from congressional action (or inaction), are major questions for the panel to consider.

Section 1983. Finally, in my judgment, one of the less persuasive alternatives (pressed particularly by the Department of Justice at oral argument) was that the private litigants should have been given the opportunity to amend their complaint to include a cause of action under Section 1983. Section 1983 is acknowledged to have a private right of action to enforce not just violations of constitutional rights, but also statutory rights. There is a chance, then, that the catch-all of Section 1983 might be used to bring claims for clearly enunciated rights elsewhere in federal law where a private right of action is not explicitly present.

That said, the Supreme Court in Gonzaga University v. Doe in 2002 offered a test that looks remarkably similar to the approach taken by the Court in Sandoval, although it is undoubtedly a different context. And one may ask whether there’s much gap between the two tests. (In fact, I’m not sure of any case on record in the last twenty years where a case failed Sandoval but could be brought under 1983 by Gonzaga.) It didn’t get much attention at oral argument, so it remains to be seen what happens.

 

“Another ‘radical’ change to the Voting Rights Act could reach the Supreme Court”

Tierney Sneed for CNN:

A case that could further shrink the scope of the Voting Rights Act is before a federal appeals court Wednesday, with the appellate panel considering whether private entities – and not just the US Justice Department – can bring lawsuits under a key provision of the law.

If those seeking a narrowing of the VRA are successful, it would significantly diminish the use of the law to challenge ballot regulations and redistricting maps that are said to be racially discriminatory.

A vast majority of the cases that are brought under the Voting Rights Act – which prohibits election rules that have the intent or effect of discriminating on the basis of race – are brought by private plaintiffs, with the Justice Department facing strained resources and other considerations that limit the number of VRA cases it files to, at most, a few each year.

Last year, however, a Trump-appointed federal judge in Arkansas – running counter to decades of legal practice – said that private parties do not have the ability to sue under the relevant VRA provision, known as Section 2.

The US 8th Circuit Court of Appeals – with a three-judge panel made up of all GOP-appointees – will be considering whether to uphold that finding, setting up the potential for another Supreme Court showdown on voting rights.

“DOJ, no matter how staffed up it is, no matter how many resources they apply to this particular endeavor, is simply not going to be able to do the same amount as it could do with the partnership of private plaintiffs here,” said Sophia Lin Lakin, a top American Civil Liberties Union voting rights attorney who is arguing in favor of a private cause of action in the 8th Circuit case.

A Supreme Court Case That Threatens the Mechanisms of Democracy

At stake in Moore v. Harper is the question of how elections should be run—and who should resolve the inevitable disputes when they arise.

https://www.newyorker.com/magazine/2022/12/19/a-supreme-court-case-that-threatens-the-mechanisms-of-democracy

The Courts Are the Only Thing Holding Back Total Election Subversion

The false claim of a stolen election metastasized into an election-denialist movement far worse than we could have ever imagined.

 

The Supreme Court Is Headed for a Self-Imposed Voting Caseload Disaster

https://slate.com/news-and-politics/2022/10/supreme-court-voting-case-disaster-harper-moore.html

 

“Election Science on Trial: Will the US Supreme Court Further Undermine the Voting Rights Act?”

Michael Latner on Merrill v. Milligan.

 

Judge Luttig: Independent State Legislature Theory is Nonsense

J. Michael Luttig is a former federal judge on the U.S. Court of Appeals for the Fourth Circuit.

October 3, 2022

https://historynewsnetwork.org/article/184073

The Supreme Court will decide before next summer the most important case for American democracy in the almost two and a half centuries since America’s founding.

In Moore v. Harper, the Court will finally resolve whether there is a doctrine of constitutional interpretation known as the “independent state legislature.” If the Court concludes that there is such a doctrine, it would confer on state legislatures plenary, exclusive, and judicially unreviewable power both to redraw congressional districts for federal elections and to appoint state electors who quadrennially cast the votes for president and vice president on behalf of the voters of the states. It would mean that the partisan gerrymandering of congressional districts by state legislatures would not be reviewable by the state courts—including the states’ highest court—under their state constitutions.

Such a doctrine would be antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution.

The independent-state-legislature theory gained traction as the centerpiece of President Donald Trump’s effort to overturn the 2020 presidential election. In the Supreme Court, allies of the former president argued that the theory, as applied to the electors clause, enabled the state legislatures to appoint electors who would cast their votes for the former president, even though the lawfully certified electors were bound by state law to cast their votes for Joe Biden because he won the popular vote in those states. The Supreme Court declined to decide the question in December 2020. The former president and his allies continued thereafter to urge the state legislatures, and even self-appointed Trump supporters, to transmit to Congress alternative, uncertified electoral slates to be counted by Congress on January 6.

That as many as six justices on the Supreme Court have flirted with the independent-state-legislature theory over the past 20 years is baffling. There is literally no support in the Constitution, the pre-ratification debates, or the history from the time of our nation’s founding or the Constitution’s framing for a theory of an independent state legislature that would foreclose state judicial review of state legislatures’ redistricting decisions. Indeed, there is overwhelming evidence that the Constitution contemplates and provides for such judicial review.

 

“The Roberts Court Takes Aim at the Voting Rights Act”

Joshua Douglas, University of Kentucky J. David Rosenberg College of Law, offers a preview of Merrill v. Milligan in the Washington Monthly.

“The Court took a cleaver to the Voting Rights Act in its last two significant rulings. If the Roberts Court rules for Alabama, as seems likely, the case will complete a sorry trilogy.”

Harvard Law School Professor Emeritus Lawrence Tribe on the future of the Voting Rights ActThe New York Review of BooksSeptember 24, 2022 NewsletterOther than Moore v. Harper, what other significant cases do you see coming in the next term? There are many, but I would single out Merrill v. Milligan, a case from Alabama in which the Supreme Court will have the majority it has been moving toward to essentially finish the project of gutting the 1965 Voting Rights Act.This interview probably isn’t a good place for me to elaborate, but I would point your readers toward a wonderful article by Linda Greenhouse in The Atlantic for October 2022, “John Roberts’s Long Game,” in which she argues that the Chief Justice’s position, “essentially, is that any effort to eradicate racial discrimination, is itself racial discrimination,” a Kafkaesque distortion of the Reconstruction Amendments if ever there was one.

“Losing Legitimacy? Institutional Legitimacy Under Stress”

Jim Gibson has posted this draft on SSRN. Here is the abstract:

In its ruling abrogating a federal constitutional right to abortion services, the U.S. Supreme Court set off a firestorm of criticism unrivaled in recent times. Indeed, the Dobbs decision may be the most legitimacy threatening decision since the 1930s. At the same time, extant research has not established that displeasure with a ruling by the Court has great consequences for institutional support, largely because, as explained by Positivity Theory, Court decisions are invariability delivered with all the accoutrements of legitimizing judicial symbols. The purpose of this research is to determine whether the ruling in fact lessened the legitimacy of the Court and widened support for fundamental structural reforms to the institution. My most general conclusion is that Dobbs produced a sizable dent in institutional support, perhaps an unprecedented dent, in part because abortion attitudes for many are infused with moral content. Were the Court to go further than it did in Dobbs in its rejection of abortion rights, around one-half of the American people would either approve of the ruling or be willing to accept it despite disapproval. Were the Court to roll back Dobbs, nearly all the American people would either approve of the ruling or be willing to accept it despite disapproval. Especially in light of the substantial tilt of the Court to the right since 2020, the Court’s legitimacy may be at greater risk today than at any time since FDR’s attack on the institution in the 1930s.

 

NC’s Opening Brief in Moore:  State Constitutions and the Independent State Legislature Theory

North Carolina has now filed its opening brief.  I want to single out one aspect of that brief here.

            As I’ve emphasized, there are at least two different versions of ISLT on the role of state constitutions.  The more sweeping one is that state constitutions cannot impose any substantive constraints on state laws regulating national elections (I’ll just call these state laws, to condense).  The other is that specific constitutional constraints can apply, but state courts cannot rely on broad, general provisions – such as those that guarantee “free and fair elections” – to invalidate these state laws.  Under the first theory, a state constitutional provision that specifically bans partisan gerrymandering would be enforceable.  But state courts could not rely on general provisions to get to the same result.

            The North Carolina case presents a version of the second situation.  The NC Constitution does not contain any express ban on partisan gerrymandering.  Instead, the state court relied on general state constitutional provisions, such as those providing that elections must be “free” and protections for the rights of free speech, assembly, the press, and the state’s equal protection clause.  Before the Supreme Court, the state could have taken the narrowest position necessary to get to the result it seeks; it could have argued that this case does not present the question of how specific provisions in state constitutions apply to these state laws.  NC could have argued that, in this case, the question is whether state courts can rely on general provisions to invalidate these state laws.

            But instead, NC is arguing for the much more sweeping position.  Or rather, it trades off between these two positions.  Its Question Presented, for example, frames the issue as one involving allegedly “vague constitutional provisions.”  Parts of the brief continue to hammer away at the “vagueness” of the relevant provisions.  But other parts of the brief essentially argue that state constitutions cannot impose any substantive constraints on these state laws, regardless of how specific those provisions might be.  Here is one of many such passages in the brief: “When a state legislature’s election regulations are nullified by a state court on state-constitutional grounds, the practical result is that the State has reallocated a portion of the authority assigned specifically to its legislature by the federal Constitution and parceled it out instead to its courts.”  The central position of the NC brief is that no substantive state constitutional provisions can constrain these state laws.

            How many Justices on the Court have indicated they start out likely to support the principle that at least some limits exist on the substantive constraints state constitutions can impose on state laws regulating national elections?  I count three:  Justices Thomas, Alito, and Gorsuch.

            Justice Barrett has not yet expressed any view on any version of the ISLT at all.

            Chief Justice Roberts has taken the view that a state constitution cannot transfer the authority to design congressional districts completely out of the hands of the state legislature.  But he has not expressed a view about specific substantive state constitutional constraints on state legislation regulating national elections.

            Justice Kavanaugh’s stated positions require a bit more unpacking.  In his own words, in the one statement he has issued on the ISLT, he has indicated some support only for the position that the Constitution constrains state judicial interpretation of state laws regulating national elections.  He has not himself addressed the role of state constitutional provisions. 

On the other hand, he did join a statement of Justice Gorsuch’s in the DNV v. Wisconsin State Legislature case (on the eve of the 2020 election) concurring in the denial of a stay application.  I’m not sure what to make of that statement, because Justice Gorsuch asserts there that even federal courts cannot apply the federal constitution to invalidate these state laws.  I doubt anyone on the Court believes that, and I’m not even sure Justice Gorsuch does – this statement was issued in incredibly rushed circumstances in the final days of the 2020 election.  That position would mostly be unnecessary, in any event, because if upper-level courts disagree with the way a federal court has applied the Constitution, they can always reverse that judgment on the merits.  In any event, this Justice Gorsuch statement is puzzling enough I am not inclined to read much into Justice Kavanaugh signing it.

Thus, I read three Justices as having indicated initial support for the position that at least some state constitutional provisions can’t be enforced against state laws regulating national elections.  This isn’t to predict how many votes there will be on the merits for the broad position that state constitutions cannot constrain these state laws.  It’s just an accounting of what various Justices have said in opinions or statements in cases thus far.

 

The Different Potential Versions of Any “Independent State Legislature Doctrine”

In my testimony on the independent state legislature theory (ISLT) to the House Administration Committee, I identified seven different potential versions of such a doctrine, should the Court endorse it at all.  That highlights the fact that the question is not just whether the Court endorses such a doctrine, but what the scope of that doctrine would be.  I thought it might be helpful to list those different potential versions here.

In my testimony, I address the practical consequences of each of these different versions, as well as the historical evidence, for or against, any of these versions.  Here, I will just list these versions without elaborating upon them.  One can find endorsements of each, or at least suggestions of support for them, either in statements individual Justices have issued or in well-informed commentary.  Also, if the Court endorses the doctrine, that doctrine could include more than one of these specific versions. 

I’ve listed them more or less in order of how wide-ranging the consequences would be of each version, with the most sweeping versions listed first:

1. State constitutions.  State constitutions cannot impose substantive constraints on state legislation regulating national elections

2. Voter-initiated laws.  Voter-initiated legislation cannot impose substantive constraints on state legislation regulating national elections

3. General v. Specific State Constitutional Provisions.  State constitutions or voter-initiated laws can impose substantive constraints on such legislation, but cannot transfer permanently transfer entirely out of the legislature’s hands a fundamental function involving state regulation of national elections (such as redistricting)

4. Regulating v. Permanently Displacing State Legislatures. State constitutions can impose substantive constraints on state legislation regulating national elections if those constraints are specific enough, but state courts cannot enforce more general state constitutional provisions against state legislation regulating national elections.

5. Direct Conflicts with State Election Laws in the Administration and Interpretation of State Election Laws.  State executive officials and courts cannot invoke general principles or canons of interpretation that generate a result which directly contradicts or conflicts with a provision in state election law regulating national elections.

6. Straying ”Too Far” from State Election Laws in Administration and Interpretation of State Election Laws.  Even if executive action or state judicial interpretation does not generate a result that directly conflicts with state election law, the ISLT precludes executive action or state judicial interpretation that strays too far from the text of state election laws that regulate national elections.

7. Limits on State Court Remedial Relief.  State courts can enforce substantive provisions in state constitutions or voter-initiated enactments, but if the courts find a violation, they must give the legislature the first opportunity to decide how to remedy that violation, at least absent urgent time constraints.

Note that I do not include on this list a version in which state legislation regulating national elections could not be subject to gubernatorial veto.  I’m not aware of any major defender of the ISLT who argues for that version.

“How the Supreme Court could make it legal to steal the next presidential election”

Jessica Levinson in MSNBC on Moore v. Harper: “Our conservative Supreme Court stands ready to allow states to legally steal presidential elections by blessing a right-wing legal theory called independent state legislature doctrine. It is not an overstatement to say that this case could completely upend elections and erase the power of our votes for president.”

Gridlock in Congress Has Amplified the Power of the Supreme Court

NYTimes:

On the last day of a turbulent term that included rulings on what the Constitution has to say about abortion, guns and religion, the Supreme Court issued another sort of decision, one that turned on the words of the Clean Air Act.

Without “clear congressional authorization,” the court said, the Environmental Protection Agency was powerless to aggressively address climate change. In years past, that might have been the start of a dialogue with Congress, which after all has the last word on what statutes mean, because it can always pass new ones.

But thanks to legislative gridlock, Congress very seldom responds these days to Supreme Court decisions interpreting its statutes — and that means the balance of power between the branches has shifted, with the justices ascendant.

The blockbuster decisions — on abortion, guns, religion and climate — told part of the story. But the court’s abrupt rightward shift ran through its entire docket.

https://www.nytimes.com/2022/07/01/us/supreme-court-term-roe-guns-epa-decisions

[Excerpts:]

The court’s shift to the right included all sorts of legal issues, said Melissa Murray, a law professor at New York University.

Cases on abortion, voting and vaccines all reached the court by way of emergency applications this term.

“First,” he said, “it’s clear a majority of the court is firmly committed to an originalist understanding of the Constitution rooted in the document’s text and history. Second, that majority will act boldly to apply its originalist philosophy in ways that curb certain perceived excesses of 20th-century ‘living constitutionalism,’ even when doing so is controversial and at odds with public opinion polls.”

On Thursday, as they were about to begin their summer breaks, the justices agreed to hear one more blockbuster, one that could radically reshape American elections, on the power of state legislatures to set voting rules.

 

The “Independent” State Legislature in Republican Theory

I have taken the unorthodox step (for me, anyway) of posting an early draft of an essay that I am working on. My take on the independent state legislature theory, forthcoming in a special symposium issue of the Texas A&M Law Review celebrating Professor Richard Epstein, available here.

In this essay, I try to situate the notion of an “independent” legislature in the context of republican principles that prioritize majority rule. Specifically, I explore the question of who is the “state” on behalf of which the legislature deploys power when it chooses electors. I conclude that the “state” is its citizens, whose preferences are conveyed to the state legislature through the state’s electorate and in the state constitution. Thus, the state legislature cannot disregard the preferences of the people at the juncture in which they are exercising oversight and accountability at the core of our system of republicanism: during the election of federal officials.

Thanks for reading, and I welcome any feedback!

 

Supreme Court Will Hear Moore v. Harper, the Independent State Legislature Theory Case from North Carolina; This Case Could Severely Curtail the Ability of State Courts to Protect Voting Rights and Stop Partisan Gerrymandering

The Supreme Court today just agreed to hear Moore v. Harper, an “independent state legislature” theory case from North Carolina. This case has the potential to fundamentally rework the relationship between state legislatures and state courts in protecting voting rights in federal elections. It also could provide the path for election subversion.

The issue presented in this case has been a recurring one in recent years. Two parts of the Constitution, Article I, Section 4 as to congressional elections and Article II as to presidential elections give state “legislatures” the power to set certain rules (in the Art. I, section 4 context, subject to congressional override). The Supreme Court has long understood the use of the term legislature here to broadly encompass a state’s legislative process, such as the need for a governor’s signature on legislative action (or veto override) about congressional elections. See Smiley v. Holm. As recently as 2015, the Supreme Court held that the voters in Arizona could use the initiative process to create an independent redistricting commission to draw congressional districts even when the state legislature objected. See Arizona Independent Redistricting Commission v. Arizona Legislature.

But that latter case was 5-4 with a strong dissent by Chief Justice Roberts, who believed the legislature could not be cut out of the process. Most of the Justices in the majority in that case are now off the Court.

There’s a more radical version of the idea that the Legislature has power, standing on its own as a body and not part of the general structure of state government, in the independent state legislature theory.

Take the facts of the Moore case. The North Carolina Supreme Court, interpreting a provision of the state constitution protecting the right to vote, held that partisan gerrymandering violated the state constitution and required drawing fairer lines, including in Congressional districts. That state court is majority-Democrat and the NC General Assembly is majority Republican. The Republican legislature argued that this holding usurped its sole and plenary power to choose the manner for drawing congressional districts.

Pause on that for a moment: the theory in its extreme is that the state constitution as interpreted by the state supreme court is not a limit on legislative power. This extreme position would essentially neuter the development of any laws protecting voters more broadly than the federal constitution based on voting rights provisions in state constitutions.

And this theory might not just restrain state supreme courts: it can also potentially restrain state and local agencies and governors implementing rules for running elections.

And this kind of argument shows how the ISL theory, if taken to its extreme, could help foment election subversion. How so? Suppose a state agency interprets state rules to allow for the counting of certain ballots, and doing so favors one candidate. If the leaders of the legislature are from the other party, and they say that the interpretation does not follow the views of the legislature, it’s impermissible and the results need to flip.

Now there may be many responses to such arguments, including arguments like laches—you can’t start raising these arguments after an election when things don’t go your way.

This was in fact the theory that Trump allies tried to raise after the PA Supreme Court extended the time to receive absentee ballots in the 2020 elections because of covid, relying on voter protective provisions in the State constitution. Trump allies argued this usurped the power of the state legislature to set deadlines, and Justice Alito at the time (Circuit Justice for the Third Circuit) put the counting of such ballots on hold. There were about 10,000 such ballots, far fewer than the 80,000 vote victory of Biden in the state. But if it had been closer, a radical reading of ISL could have led to a flipping of results.

Now may be more limited ways of reading the ISL theory, such as to apply only when a state court or agency decision very strongly deviates from legislative language about how to run federal elections.

There are also strong originalist arguments that might persuade some of the Justices not to adopt such a radical reading of these constitutional provisions.

But buckle up! An extreme decision here could fundamentally alter the balance of power in setting election rules in the states and provide a path for great mischief.

[This post has been updated]

 

Supreme Court to take on controversial election-law case

By Nina Totenberg

Thursday, June 30, 2022 

https://text.npr.org/1106866830

The Supreme Court on Thursday agreed to hear a case that could dramatically change how federal elections are conducted. At issue is a legal theory that would give state legislatures unfettered authority to set the rules for federal elections, free of supervision by state courts and state constitutions.

The theory, known as the “independent state legislature theory,” stems from the election clause in Article I of the Constitution. It says, “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”

Proponents of the theory argue that that clause gives state legislatures power to regulate federal elections uninhibited by state courts or state constitutions. If a majority of the Supreme Court agrees, that would hamstring state courts, removing judicial oversight of state elections.

“Taken to its extreme, the independent state legislature doctrine could be an earthquake in American election law and fundamentally alter the balance of power within states and provide a pathway to subvert election results,” says professor Richard Hasen, an expert on election law from the University of California, Irvine.


Related Story: How the Supreme Court could radically reshape elections for president and Congress


The theory comes to the court in a case from North Carolina where the state supreme court threw out the state legislature’s drawing of new congressional district lines. The court found that the reapportionment was such an extreme partisan gerrymander that it violated the state constitution. And in reaching its decision, the court noted that the state constitution and the state legislature itself had authorized judicial review of congressional redistricting plans.

The Republican speaker of the North Carolina House of Representatives and other GOP legislators appealed to the U.S. Supreme Court, contending that only the legislature could alter redistricting plans, not the state supreme court.

The independent state legislature theory was first invoked by three conservative U.S. Supreme Court justices in the celebrated Bush v. Gore case that handed the 2000 election victory to George W. Bush. In that case, the three cited it to support the selection of a Republican slate of presidential electors.

In the North Carolina case, the Republican-dominated state legislature is invoking it to draw maps favorable to the GOP.

In its most extreme form, the independent state legislature theory was invoked — unsuccessfully — by Trump advocates in an effort to sidestep the legitimate outcome of the 2020 election. In Arizona, for instance, some Trump supporters used the theory in calling for the decertification of the state’s electors. Among those seeking decertification was Virginia Thomas, the wife of Justice Clarence Thomas.

Thomas is one of four conservatives on the current court who have indicated their support for the independent state legislature theory. The others are Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh. Kavanaugh worked on the legal team supporting then-Texas Gov. Bush in the aftermath of the 2000 election. Bush v. Gore, a decision often referred to as a ticket “for this train only,” was never cited in any subsequent Supreme Court decision. Until 2020, when Kavanaugh, by then a Supreme Court justice, cited it in a Wisconsin election case dealing with rules for absentee ballots at the height of the pandemic.

In a previous iteration of the North Carolina case last March, Kavanaugh said the court should at some point “carefully consider” the independent state legislature issue, “as it is almost almost certain to keep arising” until it is definitely resolved. Justices Alito, Thomas and Gorsuch took things a step further, declaring, “there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections.”

Just where the court will end up on this issue is not yet clear. Chief Justice John Roberts, writing for the court’s five most conservative justices in 2019, said one of the checks on partisan gerrymandering is that state courts can continue to oversee congressional redistricting plans.

In another relevant case, the court in 2015 upheld the right of Arizona voters to try to make the redistricting process less partisan by creating an independent redistricting commission to draw congressional district lines.

“The animating principle of our constitution is that the people themselves are the originating source of all the powers of government,” wrote Justice Ruth Bader Ginsburg for the majority. “Nothing in [the election clause] instructs, nor has this court ever held” that in the name of regulating “the time place and manner of elections” a legislature may enact laws “in defiance of provisions of the state’s constitution.”

That idea is supported by new scholarship that suggests that the public understanding of the term “legislature” at the founding was not what it is today. At the founding, the accepted meaning of the word “legislature” was a body created and constrained by state constitutions, according to an article to be published in The Supreme Court Review. The authors are Vikram Amar, dean of the University of Illinois law school, and his brother, Yale law professor Akhil Amar.

You can be sure that theirs will not be the last word.

This case, Moore v. Harper, will likely be argued this fall after the midterm elections.

 

The Supreme Court has chipped away at the Voting Rights Act for 9 years. This case could be the next blow.

The diminished Voting Rights Act has already played a key role in the 2022 elections via redistricting.

https://www.politico.com/news/2022/06/27/supreme-court-voting-rights-act-00042478

The Voting Rights Act of 1965 has been slowly whittled away over the last decade by the Supreme Court — and a case set to be heard in the fall could shrink the protections offered by the law to the smallest level yet.

The redistricting cycle preceding this year’s elections was the first in 50 years to take place without “preclearance” requirements under the law — a pillar of the Voting Rights Act as originally written, in which states with histories of discriminatory voting practices had to have new election laws or practices reviewed by a federal court or the Department of Justice. Chief Justice John Roberts ruled for a divided Supreme Court nine years ago, in Shelby County v. Holder, to strike down the part of the VRA that determined which states and counties were subject to preclearance.

Now, a still-more conservative Court will hear arguments in the fall about Alabama’s redistricting, in a case targeting the other central piece of the Voting Rights Act: Section 2, which prohibits voting practices and procedures that discriminate on the basis of race. The result of the case could make it more difficult for minority communities to claim new election laws are discriminatory — and raise the bar for what has to happen to get relief from the court

The diminished Voting Rights Act has already played a key role, in its absence, in the 2022 elections. Three states that were previously covered by preclearance requirements — Alabama, Georgia and Louisiana — have all seen their maps face significant challenges in federal court over whether or not they give Black voters adequate representation.

Federal judges threw out Alabama’s map in the spring, but it was reinstated for 2022 by the Supreme Court, which ruled 5-4 that it was too close to the election to draw a new map. A federal judge in Georgia wrote in another case that the state’s map may violate the VRA while letting it stand for 2022, and Louisiana is currently redrawing its map under court order — though the Supreme Court could step in to halt the process, as it did in Alabama.

And in Florida, a federal district judge ruled that an omnibus election law passed in 2021 was so egregious that the state should have to face preclearance requirements going forward, in a process known as “bail in.” (That ruling was also stayed, pending an appeal.)

“I would say that minority voting rights have deteriorated significantly,” said Rick Hasen, a prominent election law expert. “Now with the [Alabama] case … there’s the potential to really undermine Section 2’s use as a tool for minority representation and empowerment.”

The Supreme Court has limited the power of the Voting Rights Act in a series of cases over the last decade. It started with Shelby County in 2013, but two other decisions also played major roles: Abbott v. Perez in 2018, in which the court ruled that state legislators were entitled to a presumption of good faith, and then again last year in Brnovich v. Democratic National Committee. There, Justice Samuel Alito laid out five so-called guideposts to assess if election laws were discriminatory under Section 2, which voting rights advocates and election attorneys decried as a surprisingly broad decision that would undercut future challenges.

The overall effect, civil rights groups and voting rights attorneys say, has been to shift from preemptive checks on election laws to after-the-fact challenges — cases that are harder to win and also see the legal burden shift to those affected by the laws.

Kathay Feng, the national redistricting director at the good government group Common Cause, compared preclearance to the ability to prevent a repeat arson. “But unfortunately, with Shelby County, we have to allow a building to burn down before we can go and seek some kind of justice and by then the harm has already happened,” she said.

Since preclearance was scrapped, Congress has been unable to act to pass a new formula to replace the one thrown out by the Supreme Court. And the upcoming Alabama case could make after-the-fact Section 2 claims even more difficult.

There, challengers argue that the state’s new maps violated the Voting Rights Act by diluting the power of Black voters in the state. They allege that Black voters were packed into one congressional district at the expense of drawing a second majority-Black district out of seven total seats. About a quarter of Alabama’s population is Black, and there has long only been one majority-minority — and predominantly Democratic — district in the state.

Republican state legislators argued that they initially drew the map lines without any consideration of race.

“We did not try to do race-neutral — we did race-neutral,” said Republican state Sen. Jim McClendon, the chair of Alabama’s state Senate redistricting committee.

McClendon said that when mapmakers were initially drawing map lines, they did not display racial demographic information, only revealing it during a final check “to make sure we were in compliance with the Voting Rights Act.”

But a federal court disagreed, with a three-judge panel writing in a lengthy opinion in January that the map drawn by legislators likely violated the Voting Rights Act. While the Supreme Court ordered Alabama didn’t have to redraw its map right away, it agreed to hear the case.

While Roberts joined the Court’s three liberals calling for the lower court’s ruling to stand, even in dissent, the chief justice signaled a willingness to reconsider how the VRA is interpreted. Roberts wrote that the current test for so-called vote dilution claims “have engendered considerable disagreement and uncertainty.”

A Historical Challenge to the Independent State Legislature Theory

Sean Daly (MA, Political Science, NIU) shares these thoughts:

In the 1930s the Court unanimously decided Smiley v. Holm, Secretary of State, 285 U.S. 355(1932), Koenig et al. v. Flynn, Secretary of State, et al., 285 U.S. 375 (1932), and Carroll v. Becker, Secretary of State, 285 U.S. 380 (1932). These cases dealt with the issue of redistricting in Minnesota, New York, and Missouri, respectively, following the fifteenth decennial census. The lead case, Smiley, was authored by Chief Justice Hughes and used to decide the two subsequent cases. At issue in each case was the role of the State Governor, under Article I, section 4 of the U.S. Constitution, in a state’s redrawing of district lines for congressional elections. According to the facts stated in Smiley, the Minnesota legislature (then controlled by Republicans) passed a bill known as House File No. 1456, which created new congressional districts. The Governor (Democrat), returned the bill without his approval. A resolution in the State House then required the bill to be deposited with the Secretary of State, putting into effect the provisions of House File No. 1456. The Court in Smiley stated the question as, “[W]hether the provision of the Federal Constitution, thus regarded as determinative [Art. I, sec. 4], invests the legislature with a particular authority and imposes upon it a corresponding duty, the definition of which imports a function different from that of lawgiver and thus renders inapplicable the conditions which attach to the making of state laws” (285 U.S., at 365). The Minnesota Supreme Court (184 Minn. 228), from which the appeal in Smiley was taken, had concluded that “the legislature in redistricting the State was not acting strictly in the exercise of the lawmaking power but merely as an agency, discharging a particular duty in the manner which the Federal Constitution required” (285 U.S., at 364). In reversing the State Supreme Court, Chief Justice Hughes discussed the different functions performed by a state legislature, under different provisions of the federal constitution, and concluded that the function contemplated by Art. I, sec. 4, was that of “making laws,” and that this law-making function “must be in accordance with the method which the State has prescribed for legislative enactments” (285 U.S., at 366-67). Article I, section 4, of the Federal Constitution did not confer upon the state legislature a power to act independently of the other branches of government. As the legislature’s role under Art. I, sec. 4, was that of traditional law-making, it was bound to act in accordance with the provisions of the state constitution. Immediately following the Court’s decisions, a New York Times headline read “Highest Court Voids State Redistricting: Supreme Tribunal Upsets Republican Action Which Ignored Governor Roosevelt” (April 12, 1932 [attached]). This was a reference to the decision in Koenig (affirming the decision of the N.Y. Court of appeals, 258 N.Y. 292), where the redistricting act in question was passed by New York’s Republican controlled legislature and vetoed by Governor Roosevelt (Democrat).

In sum, members of the Republican Party in 1932 made the same argument – focusing on a different branch of state government – that the Party is making today. Then, the ISL Theory (as it is called today) was asserted as a means of bypassing the veto of Democratic Governors. Today, the ISL Theory is being asserted to bypass state courts. Even the arguments made in the briefs before the Supreme Court in the above mentioned cases are similar to those being made today (I have pdf copies of the briefs if you are interested). In my reading of these prior cases the Court directly refutes the claim that the state legislature acts “independently” with regards to election laws, as you point out with your reference to Smiley. Usage of the term “Independent State Legislature” does not even make sense given these precedents, as the Court has already said that the legislature does not act independently under Art. I, sec. 4 of the Constitution (perhaps a more accurate term would be, the “Independent of State Courts” Theory).

 

Supreme Court Poised to Decide within Weeks Whether to Take Up Case Raising “Independent State Legislature” Theory–with Potential Big Implications for 2024 Elections

The Supreme Court is poised to decide before it breaks for the summer whether to hear Moore v. Harper, a case raising the question whether the North Carolina Supreme Court had the power to rein in the North Carolina General Assembly’s partisan gerrymander of the state’s congressional districts. Opponents of the lawsuit asked to delay filing their opposition until June 20, but the Supreme Court required that briefs be filed by May 20, and they have been. That gives enough time for the Court to decide before the expected end of the term in June or early July whether to hear the case next term. It’s a case with potentially enormous implications for the 2024 elections and beyond.

As issue is the viability of the “independent state legislature theory.” As I explained in this Slate piece, when North Carolina Republicans sought emergency relief in the Supreme Court in this case, this suit “if successful would not only restore the state legislature’s ability to engage in partisan gerrymandering and perhaps tip control of Congress, but would radically alter the power of state courts to rein in state legislatures that violate voting rights in federal elections.” Further:

The Supreme Court accepting North Carolina’s argument would lead to some horrible consequences. First, it would neuter state courts’ abilities to rein in partisan gerrymandering, further undermining democratic representation. Second, the Supreme Court would be acting in a way that could tip control of Congress to Republicans.

But most importantly, siding with North Carolina could profoundly alter the balance of power between state courts and state legislatures. It could essentially neuter the ability of state courts to protect voters under provisions of state constitutions against infringement of their rights. This would apply not only to redistricting but to laws restricting registration and voting practices. It would allow hostile legislature to run roughshod over legislative rights. It could lead to major voter suppression policed by neither state courts nor federal courts, given the Supreme Court’s shrinking of the federal Voting Rights Act’s protections.

There are some good reasons for the Supreme Court not to take this case, not the least of which is that the state legislature seems to have empowered the state courts to review redistricting decisions, meaning there would be no violation of the legislature’s “power” even if such power exists.

But four Justices expressed interest in this theory when the Court denied a stay in this case, and former Judge Luttig believes the Court is going to have to resolve this issue sooner rather than later:

Only last month, in a case from North Carolina the Court declined to hear, Moore v. Harper, four Justices (Alito, Thomas, Gorsuch and Kavanaugh) said that the independent state legislature question is of exceptional importance to our national elections, the issue will continue to recur and the Court should decide the issue sooner rather than later before the next presidential election. This case involved congressional redistricting, but the independent state legislature doctrine is as applicable to redistricting as it is to presidential elections.

But there are dangers on the horizon in this case or another one. As I’ve written about Justice Alito’s dissent from a stay in this case:

If J. Kavanaugh ultimately goes along with the Alito reasoning, it will take only one more Justice to agree in order to overturn over two centuries of practice involving interpretation of state election law by state courts. Chief Justice Roberts’ dissent in the Arizona redistricting case from 2015 put him very much in sympathy with Alito’s position on the merits; he might demur for prudential reasons, but who knows? And Justice Amy Coney Barrett is a complete mystery, as she has not weighed in on this. I expect the major action is going to be building a strong record, based upon originalist style scholarship, that the independent state legislature theory, as currently understood, is contrary to the original understanding of the Constitution. There’s a strong case to be made, and it will be one of the first tests to see how serious Justice Barrett takes such historical arguments.

Further, as I wrote in the Harvard Law Review Forum, some of the more extreme forms of the doctrine could facilitate election subversion in 2024 with state legislatures appointing slates of electors that would negate the choices of voters for President. Keep your eye on this.

 

How Bad Could Things Get for the Voting Rights Act? The Supreme Court Just Gave Us a Preview.

APRIL 13, 2022

by  and 

 

Judge Rules Parts of Florida Voting Law Are Unconstitutional

The ruling against a major Republican election law, issued by a federal judge in Tallahassee, is likely to be overturned either by a higher appeals court or the U.S. Supreme Court.By Reid J. EpsteinPatricia Mazzei and Nick Corasaniti

March 31, 2022

https://www.nytimes.com/2022/03/31/us/politics/florida-voting-law.html?referringSource=articleShare

[Excerpt:] 

A federal judge in Florida ruled on Thursday that sections of the state’s year-old election law were unconstitutional and racially motivated, and barred the state from making similar changes to its laws in the next decade without the approval of the federal government.

The sharply worded 288-page order, issued by Judge Mark E. Walker of the Federal District Court in Tallahassee, was the first time a federal court had struck down major elements of the wave of voting laws enacted by Republicans since the 2020 election. Finding a pattern of racial bias, Walker in his ruling relied on a little-used legal provision to impose unusual federal restrictions on how a state legislates.

“For the past 20 years, the majority in the Florida Legislature has attacked the voting rights of its Black constituents,” Walker wrote in the decision, which frequently quoted the Rev. Dr. Martin Luther King Jr. Walker argued that the attacks were “part of a cynical effort to suppress turnout among their opponents’ supporters. That, the law does not permit.”

In his decision, Judge Walker castigated previous Supreme Court rulings on voting issues and essentially dared the justices to overturn his decision.  [Boldface added]

Judge Walker’s decision is certain to be appealed and is likely to be overturned either by the Court of Appeals for the 11th Circuit in Atlanta, which tends to lean conservative, or the Supreme Court, which has sharply limited the federal government’s power to intervene in state election law.

 

From: Heather Cox Richardson from Letters from an American <heathercoxrichardson@substack.com>
Date: March 9, 2022

This same conviction that Democrats must be stopped at all costs is pushing the drive to destroy democracy by concentrating political power in state legislatures. In a dissent this week, four right-wing Supreme Court justices indicated they support a further step in that concentration, backing a legal argument that state legislatures have ultimate power to determine their own voting procedures, including the selection of presidential electors, regardless of what a majority of voters want.

Under the dressing of new legal terminology, this is, at heart, the old state’s rights argument. If a state’s legislature can determine who gets to vote, a minority can control that legislature and entrench itself in power, passing laws that keep the majority subservient to those in control. It was this very concept Congress overrode in 1868 with the Fourteenth Amendment to the Constitution, saying that no state could deprive a citizen of the equal protection of the laws.

Resurrecting it now would pave the way for a January 6th–type coup through the law, rather than through the plots of a ragtag mess of insurrectionists.

 

THE SUPREME COURT JUST MOVED THE VOTING RIGHTS ACT FROM LIFE SUPPORT TO DEATHBED

With John Roberts isolated, and the three liberal justices in dissent, five ultraconservatives gave the GOP a major 2022 boost.

BY CRISTIAN FARIAS

https://www.vanityfair.com/news/2022/02/the-supreme-court-just-moved-the-voting-rights-act-from-life-support-to-deathbed

One would be hard-pressed to find a single judicial writing in which Chief Justice John Roberts endorses an outcome that bolsters Black voting power, let alone one that treats the Voting Rights Act of 1965 with the reverence that law deserves. He was, after all, the author of Shelby County v. Holder, that nadir of constitutional law that rendered toothless a key provision of the act, giving states carte blanche to make it harder for people to vote without federal oversight. In the years since, Roberts has signaled that he’s not done undermining voting rights: Last summer he quietly joined his five other colleagues on the Supreme Court’s conservative majority to more or less finish the work he started in 2013, leaving the law for which John Lewis and many others were willing to lay down their own lives on life support.

This history, grim though it may be, may yet grow bleaker as the Supreme Court enters the redistricting wars, this time with an ever-weaker Voting Rights Act. In a highly controversial order issued on Monday, the Supreme Court agreed to hear a pair of cases challenging how Alabama, following the census, redrew its congressional map in a way that diluted the voting power of Black Alabamians. But that’s not all: In one fell swoop, and without any reasoning of its own, the arch-conservative majority on the Court blocked a thorough lower court judgment requiring the state of Alabama to redraw its congressional map to include one additional Black-majority district. With that judgment now on hold, the Supreme Court’s action is expected to be a boon to Republicans seeking to regain control of Congress—and effectively puts the Voting Rights Act on its deathbed.

One telltale sign that Monday’s order was radical was one particular justice refusing to sign off on it: Roberts. The chief justice is not one to be the lone conservative dissenter, let alone in voting rights disputes. But this time around, those justices to his right—Clarence Thomas, Samuel Alito,Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—outvoted him and left him isolated, as they have in a number of cases since Donald Trump remade the Supreme Court in his image. 

The challengers in these redistricting cases contended that Black voters, who make up 27% of Alabama’s population, were “packed” into a single Black-majority district out of the seven in the state’s congressional delegation—or otherwise “cracked,” or dispersed, into other districts where their numbers aren’t large enough to send to Congress a representative of their choosing. Under long-standing Supreme Court precedent, that kind of racial gerrymandering is forbidden even by the now diminished Voting Rights Act. 

Does such Republican chicanery sound bad, undemocratic, illegal, or all three? A panel of three federal judges in Alabama certainly thought so. And it wasn’t just any panel, but one that included two Trump appointees. Together, the three judges reviewed a mountain of evidence, heard seven days of testimony, and ruled in a thoughtful, 200-plus-page opinion that Alabama legislators violated Section 2 of the Voting Rights Act, the law’s weakened but still valid bulwark against election-law malfeasance. Because violations of the law need a remedy, the judges also ordered the state to discard its racially gerrymandered map and to come up with a new one that included at least two Black-majority districts—or else one Black-majority district and another one where “Black voters otherwise have an opportunity to elect a representative of their choice.” The judges’ order also prohibited the state from conducting any elections unless and until this redrawing took place.

In the normal course of things, with the election still a world away and no intervening changes in the law, the Supreme Court should have stayed out of this dispute and not blocked the judges’ well-reasoned plan. But very little is normal with a Supreme Court where even Roberts feels compelled to cast a dissenting vote. “I respectfully dissent from the stays granted in these cases because, in my view, the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction,” wrote Roberts in a brief dissenting opinion. As he sees it, the lower court got it right with the law as it stands today—and Black Alabamians, according to their numbers, should be entitled to more political representation than their own legislators afforded them during the current redistricting cycle.

In the context of Roberts’s lifelong political project of undermining Black voting rights, and the Voting Rights Act specifically, that’s as stunning an opinion as I’ve ever seen from the chief. Yet it’s a small comfort. When you dig a little deeper, the old Roberts is still there, lurking in between the lines. In one paragraph packed with legalese and a string of citations to older cases and voting rights literature, Roberts noted that the precedents sustaining Black voters’ right to political representation “have engendered considerable disagreement and uncertainty regarding the nature and contours” of what exactly counts as vote dilution, or the claim that Black political power is being undermined. And so Roberts, while in disagreement with his conservative comrades over the map that should control the 2022 elections, doesn’t disagree that the “governing standard” for these kinds of cases, which are very much covered by the Voting Rights Act, may need to change. Or be shaken up or overruled entirely. Roberts, in this respect, may be just as eager as the other horsemen, and woman, on the Supreme Court to turn back the clock on progress. 

Legally speaking, that won’t happen until the Court’s next term, which begins in October. That’s when the Supreme Court is expected to hear Merrill v. Milligan and Merrill v. Caster, as the Alabama cases are known, which as of Monday are now officially on the docket. Practically speaking, though, as far as this year’s elections are concerned, the damage is already done. In a livid but decidedly sharp dissenting opinion, Justice Elena Kagan, joined by justices Stephen Breyer and Sonia Sotomayor, chastised the state of Alabama for pressing for “an entirely new view of what the law requires” in racial gerrymandering cases—and blasted the reactionaries in the majority for thoughtlessly acceding to the state’s request without the benefit of precisely the things the judges in Alabama relied on, such as expertise, evidence, and a hearing. 

“Substantial questions merit substantial thought,” Kagan wrote as she dissected all the ways her colleagues twisted precedent and procedure to get their way. Echoing her own dissent from last summer, when Roberts and company dealt yet another blow to the Voting Rights Act, she once again denounced their overreach while standing up for what remains of the law. “That decision does a disservice to our own appellate processes, which serve both to constrain and to legitimate the Court’s authority,” Kagan wrote. “It does a disservice to the District Court, which meticulously applied this Court’s longstanding voting-rights precedent. And most of all, it does a disservice to Black Alabamians who under that precedent have had their electoral power diminished—in violation of a law this Court once knew to buttress all of American democracy.”

The attacks on the 2024 election are already underway

Supreme Court Upholds Arizona Voting Restrictions

ByAdam Liptak

July 1, 2021

[Except]

The decision, a test of what remains of the Voting Rights Act, suggests that challenges to many new measures making it harder to vote may not be successful.

https://www.nytimes.com/2021/07/01/us/politics/supreme-court-arizona-voting-restrictions.html?action=click&module=Top%20Stories&pgtype=Homepage

WASHINGTON — The Supreme Court on Thursday gave states new latitude to impose restrictions on voting, using a ruling in a case from Arizona to signal that challenges to laws being passed by Republican legislatures that make it harder for minority groups to vote would face a hostile reception from a majority of the justices.

The vote was 6 to 3, with the court’s three liberal members in dissent.

The decision was among the most consequential in decades on voting rights, and it was the first time the court had considered how a crucial part of the Voting Rights Act of 1965 applies to restrictions that have a particular impact on people of color.

The larger message of the ruling was that the Voting Rights Act of 1965, hobbled after the Supreme Court in 2013 effectively struck down its central provision, retains only limited power to combat voting restrictions said to disproportionately affect minority voters’ access to the polls.

insider@brennancenter.org

The Supreme Court ruled today in Brnovich v. Democratic National Committee that two racially discriminatory Arizona voting laws do not violate the Voting Rights Act or the Constitution, overturning a Ninth Circuit ruling. The decision, which relies on a narrow reading of Section 2 of the Voting Rights Act, will make it more difficult to challenge discriminatory voting laws in court. The justices stopped short of eviscerating the Voting Rights Act, but they nevertheless did significant damage to this vital civil rights law and to the freedom to vote.

 

On the Future of Voting Rights

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In the legal battle over who gets to vote in America, Republicans just scored a point.

Today the Supreme Court effectively green-lit a restrictive voting law in Arizona. The decision will make it easier for similar laws—the likes of which continue to be passed in Republican-controlled statehouses around the country—to survive challenges. And with this ruling, the nation once again saw the Voting Rights Act weakened.

Below, our writers offer two quick takeaways that don’t require you to paw through the legalese yourself.

1. A decision like this was inevitable.

It was always a long shot for existing interpretations of Section 2 of the Voting Rights Act to completely survive today’s decision. The conservatives on the Supreme Court have long signaled their hostility to that provision of the law, which allowed Americans to challenge voting laws that have disproportionate racial effects. In 2013, Shelby County v. Holder defanged proactive federal oversight of the racial effects of voting laws. Although Section 2 wasn’t completely destroyed today, as many feared it would be, the decision leaves states to make it ever harder for people of color to vote, while chasing imagined voter fraud.

— Vann R. Newkirk II, senior editor

2. Only Congress can save voting rights now.

Today’s Supreme Court decision further weakening the Voting Rights Act affirmed that the only way Democrats can reverse the wave of restrictive voting laws in GOP-controlled states is to pass new federal voting rights by curtailing the Senate filibuster. … It makes plain that if Congress doesn’t establish new federal standards, the nation is headed toward a two-tier voting system, with red states imposing ever-tightening restrictions that especially burden Democratic-leaning constituencies—young, minority, and lower-income voters.

— Ronald Brownstein, senior editor

 

Letters from an American July 28, 2021

Heather Cox Richardson

Today, by a 6 to 3 vote, the Supreme Court handed down Brnovich v. Democratic National Committee saying that the state of Arizona did not violate the 1965 Voting Rights Act (VRA) with laws that limited ballot delivery to voters, family members, or caregivers, or when it required election officials to throw out ballots that voters had cast in the wrong precincts by accident.

The fact that voting restrictions affect racial or ethnic groups differently does not make them illegal, Justice Samuel Alito wrote. “The mere fact that there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote.”

The court also suggested that concerns about voter fraud—which is so rare as to be virtually nonexistent—are legitimate reasons to restrict voting.

We are reliving the Reconstruction years after the Civil War.

That war had changed the idea of who should have a say in American society. Before the war, the ideal citizen was a white man, usually a property owner. But those were the very people who tried to destroy the country, while during the war, Black Americans and women, people previously excluded from politics, gave their lives and their livelihoods to support the government.

After the war, when white southerners tried to reinstate laws that returned the Black population to a position that looked much like enslavement, Congress in 1867 gave Black men the right to vote for delegates to new state constitutions. Those new constitutions, in turn, gave Black men the right to vote.

In order to stop voters from ratifying the new constitutions, white southerners who had no intention of permitting Black Americans to gain rights organized as the Ku Klux Klan to terrorize voters. While they failed to prevent states from ratifying the new constitutions, the KKK continued to beat, rape, and murder Black voters in the South.

So, in 1870, Congress established the Department of Justice to defend Black rights in the South. It also passed a series of laws that made it a federal crime to interfere with voting and with the official duties of an elected officer. And it passed, and the states ratified, the Fifteenth Amendment to the Constitution, declaring that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

Immediately, white Americans determined to stop Black participation in government turned to a new argument. During the Civil War, the Republican Party had not only expanded Black rights, but had also invented the nation’s first national taxation. For the first time, how people voted directly affected other people’s pocketbooks.

In 1871, white southerners began to say that they did not object on racial grounds to Black voting, but rather on the grounds that formerly enslaved men were impoverished and were electing to office men who promised to give them things—roads, for example, and schools and hospitals—to be paid for with tax dollars. Because white men were the only ones with property in the postwar South, such legislation would redistribute wealth from white men to Black people. It was, they charged, “socialism.”

In 1876, white southerners reclaimed control of the last remaining states they had not yet won by insisting they were “redeeming” their states from the corruption created when Black voters elected leaders who would use tax dollars for public programs.

In 1890, a new constitution in Mississippi, which at the time was about 58% Black, restricted voting not on racial grounds but through a poll tax and a “literacy” test applied against Black voters alone. Mississippi led the way for new restrictions across the country. Although Black and Brown Americans continually challenged the new Jim and Juan Crow laws that silenced them, voting registration for people of color fell into single digits.

Read More

These laws stayed in place for 75 years. Then, in 1965, Congress passed the Voting Rights Act, designed to undo voter suppression laws once and for all. The VRA worked. In Mississippi in 1965, just 6.7% of eligible Black voters were registered to vote. Two years later, that number was 59.8%, although there was still a 32-point gap in registration between Blacks and whites. By 1988, that gap had narrowed to 6.3%, and in 2012, 90.2% of eligible Black residents were registered compared to 82.4% of non-Hispanic whites.

The Voting Rights Act was considered so important that just 15 years ago, in 2006, Congress voted almost unanimously to reauthorize it.

But the Supreme Court under Chief Justice John Roberts, who has long disliked the VRA, has chipped away at the law, cutting deeply into it in 2013 with the Shelby County v. Holder decision. And now, with three new justices appointed by former president Trump, the court has weakened it further.

To what end are we returning to the 1890s?

The restrictive voting measures passed by Republican-dominated legislatures are designed to keep Republicans in power. Today that means allegiance to former president Trump, whose Trump Organization and Trump Payroll Corporation were indicted by a New York grand jury today, along with Trump Organization chief financial officer Allen Weisselberg, on 15 felony counts, including a scheme to defraud, conspiracy, grand larceny, criminal tax fraud, and falsifying business records.

The indictment alleges that the schemes involve federal, as well as state and local, crimes. New York Attorney General Letitia James emphasized that the investigation is not over.

Republican lawmakers are lining up behind the former president so closely that last night,

House Minority Leader Kevin McCarthy (R-CA) threatened to take away the committee assignments of anyone agreeing to work on the select committee to investigate the events of January 6 that House Speaker Nancy Pelosi (D-CA) is putting together after Senate Republicans filibustered the creation of a bipartisan independent committee.

(McCarthy’s declaration prompted Representative Adam Kinzinger (R-IL), who appears appalled at the direction his party has taken, to respond “Who gives a s–t?” He added: “I do think the threat of removing committees is ironic, because you won’t go after the space lasers and white supremacist people but those who tell the truth.”)

Representative Liz Cheney (R-WY) nonetheless said she was “honored” to join the committee, along with seven Democrats. While it is unclear if McCarthy will add more Republicans, it will now get underway. The committee includes House Intelligence Committee chair Adam Schiff (D-CA), and Representative Jamie Raskin (D-MD), both of whom showed extraordinary ability to assess huge amounts of material when they managed Trump’s impeachment trials.

That the Republicans have fought so hard against an investigation of the January 6insurrection suggests we might well learn things that reflect poorly on certain lawmakers.

So, today’s news puts the American people in the position of watching as a political party, lined up behind a man now in legal jeopardy, who might be involved in an attack on our government, tries to cement its hold on power.

“Today’s decision by the Supreme Court undercuts voting rights in this country,” President Biden said, “and makes it all the more crucial to pass the For the People Act and the John Lewis Voting Rights Advancement Act to restore and expand voting protections.”

“Our democracy depends on it.”

 

Read My Testimony Before Senate Judiciary Subcommittee for Hearing on Voting Rights After Brnovich and Shelby County (and Link to Livestream of Hearing)

July 14, 2021, 10:51 amlegislation and legislaturesVoting Rights ActRICK HASEN

You can find my testimony at this link.

All of the testimony will be posted here, and you can use the same link to watch the hearing starting around 2:45 pm ET.

https://electionlawblog.org/?p=123399

 

July 2, 2021 letter  from Virginia U.S. Sen. Tim Kaine to Constituents 

Yesterday’s Supreme Court decision upholding voting restrictions in Arizona demonstrated that the Court can no longer be counted upon to preserve the one right that is fundamental to all other rights — the right to vote.

It is particularly painful to see such a decision come down just before Independence Day, a holiday celebrating this country’s optimistic founding. Abraham Lincoln called the Declaration of Independence “a rebuke and a stumbling-block to tyranny and oppression.” It was and remains a document that guides our country in an ongoing pursuit not just of our North Star of equality, but also of a government that reflects the will of the people.  

But 245 years since that document’s adoption, many of the democratic ideals that we set out to pursue are quite literally under attack — and not just in violent insurrection like we saw at the Capitol on January 6th, but in insidious election laws that seek to disenfranchise voters.

If the Supreme Court will not protect the right to vote as it is being systematically unraveled in state legislatures across the country, Congress must work even harder to pass comprehensive voting rights legislation.

I know this is not an easy task. We’ve encountered setbacks, and the path ahead is not a straightforward one.But this is not just any issue — it is of existential importance to our country. 

We simply cannot give up the fight on this critical issue in the face of GOP obstruction and gridlock. We’ve got to restore the Voting Rights Act, prevent Republican-controlled legislatures from blocking access to the ballot box, and ensure that the basic building blocks of our democracy remain intact for generations to come.

I am committed to doing everything in my power to protect the right to vote — and I hope you’ll stand by my side.Please add your name to join me in the fight to preserve our democracy.

Are There any Voting Rights Left?

https://ldad.org/letters-briefs/are-there-any-voting-rights-left

Editorial credit: Jessica Kirsh

August 7, 2021

In 2013, the Supreme Court decided Shelby County v. Holder, eliminating “preclearance,” which required certain jurisdictions specified in Section 5 of the Voting Rights Act (VRA) to apply in advance to the Department of Justice or a federal court in order to make a change in their voting procedures. It was a significant loss of a critical safeguard against racially discriminatory voting laws.

In his majority opinion, Chief Justice John Roberts nevertheless tried to reassure the public that the protections of Section 2 of the Act would remain. Section 2’s prohibition against discrimination in voting on the basis of race, however, was triggered only after the legislation went into effect. A lawsuit challenging a voting procedure could only be filed after the provision was operative, when the damage was already done, and lengthy litigation would likely extend over multiple election cycles.

Yet, last month, the Supreme Court effectively neutered Section 2 as well, in a 6-3 decision.

Read More

Ignoring the intent of Section 2, the opinion by Justice Samuel Alito let stand two discriminatory Arizona laws in Brnovich v. Democratic National Committee, ruling that they did not contravene the Voting Rights Act.

The Arizona voting changes under review in Brnovich: (1) prohibited the counting of any votes cast in the wrong precinct; and (2) prohibited the pickup or delivery of another’s ballot except by a small number of close relations and contacts. The trial court record highlighted that an in-precinct requirement for a ballot to count would operate to the detriment of voters living in jurisdictions like Arizona, where polling places are changed frequently. The impact was even worse when coupled with Census Bureau data indicating that frequent movers are disproportionately people of color. Voters in such places are likely to be assigned to many different polling places over time, even if they stay at the same address, same metropolitan area, or same county. That is confusing and multiplies the chances of errors.

Similarly, the prohibition against the pickup or delivery of someone’s ballot disadvantages Native American voters.

On Indian reservations, post offices and mailboxes are notoriously rare. Residents are often dependent on their tribal networks — not the people permitted by the statute — to pick up or deliver their mail and their ballots to distant postal services or polling places. Justice Elena Kagan’s dissent ably painted the picture:

Most Arizonans vote by mail. But many rural Native American voters lack access to mail service, to a degree hard for most of us to fathom. Only 18% of Native voters in rural counties receive home mail delivery, compared to 86% of white voters living in those counties. And for many or most, there is no nearby post office. Native Americans in rural Arizona ‘often must travel 45 minutes to 2 hours just to get to a mailbox.’ (‘Ready access to reliable and secure mail service is nonexistent’ in some Native American communities). And between a quarter to a half of households in these Native communities do not have a car. So getting ballots by mail and sending them back poses a serious challenge for Arizona’s rural Native Americans.

Section 2’s language is clear. It provides that “[a] violation…is established if, based on the totality of circumstances, it is shown that the political processes…are not equally open to participation by members of a class of citizens protected by [the statute].” Section 2 is designed to prevent States from imposing obstacles that create “less opportunity” to vote based on “race or color.”

In the Court’s interpretation of this section, Justice Alito created and relied on five factors that cannot be found in the language of the statute. Rather, the Court invented these factors out of whole cloth—or, as Justice Kagan observed, Justice Alito was in a “law-free zone.”

For example, the language of Section 2 does not contemplate that discrimination by race should be ignored just because the available methods (such as early voting or voting by mail) or the number of voters have increased since the VRA or its amendments became effective. Further, Section 2 prohibits any disparate impact based on race, but the Court seems to require a large one.

Harvard Law Professor Nicholas Stephanopoulos pointed out:

“The modern conservative justices brag about how textualist they are; they brag that they start with the text and end with the text in interpreting it. But the Court’s opinion here is largely non-textual. The court makes up this sequence of five factors that lower courts should use in the future to decide cases about voting restrictions, and none of the factors are anywhere in the text of the statute. They’re basically plucked out of thin air.”

These changes to voting laws in Arizona cannot be dismissed as matters of “mere inconvenience,” which the Court stated would not constitute a violation. For the people affected by them, they may mean the difference between having the opportunity to vote and being unable to do so. And the people affected by them are disproportionately people of color.

This is exactly what the Voting Rights Act, including Section 2 (and the late, lamented Section 5), were designed to combat. With the Supreme Court’s majority so willfully casual about its responsibility to read the law and adjudicate according to its dictates, there is nothing left but to change the law and make its dictates absolutely clear and inescapable.

 

———————–

Prospective National Voting Rights Legislation

 

Senator Reverend Warnock, Colleagues Reintroduce John R. Lewis Voting Rights Advancement Act

Lawmakers announce Senate Judiciary Committee hearing on the John R. Lewis Voting Rights Advancement Acton Tuesday, March 12

Legislation would likely have prevented voter suppression laws like SB 202 in Georgia, which effectively allows partisan state actors to overrule the decisions of local election officials

Senator Reverend Warnock: “This legislation is more important than ever because the fight to protect voting rights and voting access for every eligible American remains unfinished, and even worse, so much of the progress Congressman Lewis fought for is being rolled back”

WATCH VIDEO OF SENATOR REVEREND WARNOCK’S FULL REMARKS AT BILL REINTRODUCTION PRESS CONFERENCE HERE

Washington, D.C. – Today, U.S. Senator Reverend Raphael Warnock (D-GA) led Senate Judiciary Chairman Dick Durbin (D-IL), Senate Majority Leader Chuck Schumer (D-NY) and 48 of their Senate Democratic colleagues to reintroduce the John R. Lewis Voting Advancement Act, legislation that would update and restore critical safeguards of the original Voting Rights Act of 1965 that have been eroded in recent years by federal court rulings.

The legislation would strengthen our democracy by reestablishing preclearance for jurisdictions with a pattern of voting rights violations, protecting minority communities subject to discriminatory voting practices, and defending election workers from threats and intimidation. It is named in honor of voting rights champion and former Georgia Congressman John Lewis.

 

The Brennan Center

July 18, 2023

Freedom to Vote Act reintroduced

[Excerpt:]
Last year, the Freedom to Vote Act came achingly close to enactment. It passed the House, had a majority of the Senate in support, and the president was ready to sign it. Only the refusal of two senators to change filibuster rules stopped the most important voting rights legislation in half a century from becoming law.
Today, the Freedom to Vote Act was reintroduced in Congress. It would set national standards for voting rights and election administration. It presents a comprehensive solution to the most significant threats to our democracy — voter suppression, gerrymandering, election subversion, and more — and would block the worst excesses of the election denial movement.
Republican lawmakers will oppose the bill. But they stand athwart history.
For years, we have watched with alarm as an election denial movement threatened basic tenets of American democracy. When Donald Trump cynically launched a baseless attack on U.S. elections, he didn’t foresee that he would catalyze a powerful democracy movement. For the first time in generations, voters now view the protection and expansion of our democracy as a top priority.
This growing movement has shown power over the past 12 months. In swing states, voters rebuffed secretary of state candidates such as Kristina Karamo in Michigan and Mark Finchem in Arizona, who threatened to undermine elections from within. Election deniers underperformed other Republicans. Ballot initiatives expanding access to voting passed in many states last year. Even the Supreme Court, breaking its pattern of more than a decade, stepped back from further gutting the Voting Rights Act and rejected a crackpot idea that would have given state legislatures unfettered power over elections.
But the assault on democratic institutions continues. In Georgia, Texas, and beyond, legislatures continue to erect barriers to voting. Legislators in several states have curbed voter registration drives, restricted access to mail voting, and tightened voter ID requirements. Election officials are being threatened with politically motivated prosecution. Partisan actors are preparing bogus election audits in a desperate attempt to manufacture irregularities. Election deniers still walk the halls of Congress. And among too many Americans, demagogues diminish trust in elections.
That is why Congress should enact baseline national standards. Clear, pro-voter rules will bolster trust and enhance participation. Congress can modernize the system, drawing on best practices from around the country. Encouragingly, the Freedom to Vote Act will carry the designation of S. 1 and H.R. 11 (the number carried by the first bill introduced by the minority party). Congressional leaders are making it clear: democracy reform remains a central goal.
This reform didn’t pass last year — isn’t it futile to try again?
History teaches otherwise. Meaningful voting rights legislation failed in 1957 and 1960. It should have been included in the 1964 Civil Rights Act but was not. (Lyndon Johnson told Martin Luther King Jr. that voting rights legislation would solve “70 percent of your problems.”) It wasn’t until the Bloody Sunday massacre galvanized the American public that the Voting Rights Act finally crossed the finish line.
We are in a great fight for the future of American democracy. The Freedom to Vote Act again flies high a flag with bold colors.
[Boldface added]

Competing Voting Bills in Congress

AP reports:

Congress in the coming weeks will consider shoring up voting and election laws — efforts that will reflect the vast gulf between Democrats and Republicans on protecting a foundation of American democracy.

The parties will unveil separate and competing proposals that will have little chance of success in a divided government, but are likely to be used to rally supporters ahead of the 2024 elections.

House Republicans on Monday released a proposal that would tighten voting laws and take a defiant stand against concerns that laws passed in recent years by GOP-controlled state legislatures disadvantage some voters. Democrats, meanwhile, are preparing to reintroduce their own proposals to set federal voting standards and restore protections under the Voting Rights Act.

After retaining most of the governor’s offices they hold and capturing the legislatures in Michigan and Minnesota, Democrats are putting forward a long list of proposals to expand voting access.

 

Politico Breaks Down Differences between House and Senate Electoral Recount Count Bills

Politico offers a fairly readable break down of the key differences between the House and Senate bills seeking to reform the Electoral Recount Act of 1887.

 

This election expert is very worried about the 2024 election

By Fredreka Schouten and Kelly Mena, CNN

Updated Tue April 5, 2022

[Excerpt:]

The threats to American democracy have changed over time, becoming more serious. Whereas in the past the issues were about whether we had a system of fair representation — things like partisan gerrymandering, spending by ultra-wealthy donors on political campaigns, and concerns about efforts to suppress votes — today’s concerns are more existential. It is not an exaggeration to say that the United States came much closer to losing our democracy in the events following the 2020 election than most people realize. 

What do lawmakers need to get right in any rewrite?

There are a number of things that Congress needs to do to minimize the risk of election subversion next time and fixing the Electoral Count Act is one key part. The law should be rewritten so that no one can claim that the vice president, who presides over the ceremonial counting of state electoral college votes, can unilaterally decide to accept or reject state submissions. The law should be explicit that state legislatures cannot simply submit alternative slates of electors once people have been able to vote in the election if they don’t like the result, pointing to unproven irregularities or fraud. It also should raise the threshold for members of Congress to object to electoral college results.

Beyond ECA reform, we should require that everyone vote on voting machines that produce a paper ballot that can be recounted in a close contest. That is better than wholly electronic machines that someone can claim were hacked and without any physical evidence to verify the vote. We should require states to do post-election audits to assure their results are accurate. We need greater protection for election officials and poll workers and voters from intimidation, and stricter penalties for those who would try to manipulate election results.

 

Trump, hurdles loom for Senate election reform talks

BY JORDAIN CARNEY – 02/06/22

[Excerpts:]

Trump isn’t the only potential hurdle looming on the horizon for hopes of a deal on changing the Electoral Count Act, a 135-year-old law that lays out how the Electoral College results are counted.

But Trump’s decision to revive his criticism of former Vice President Mike Pence over his refusal to unilaterally throw out election results in states Trump lost, while also flirting with a 2024 run, is putting him at odds with the Senate negotiations.

“The statements that President Trump put out on the Electoral Count Act only underscores the need for us to remove any ambiguity that exists in the act, which is poorly drafted and has not been revised since it was passed in 1887,” said GOP Sen. Susan Collins (Maine), who was mocked by Trump as “Wacky Susan Collins.”

The bipartisan group, led by Collins and Sen. Joe Manchin (D-W.Va.), is still in its early stages after setting up five subgroups that would develop pieces of a proposal: Reforming the 1887 Electoral Count Act; protecting election workers; voting practices and rights; the election assistance commission; and presidential transitions.

The group is discussing codifying that the vice president’s role in Congress’s formal counting of the Electoral College votes is ceremonial, after Trump led a pressure campaign to try to get Pence to act unilaterally. They are also looking at increasing the number of lawmakers that must sign on to an objection before they can force a vote in both the House and Senate.

Currently it only takes one member of the House and one member of the Senate to back an objection to a state’s results to force a vote in both chambers, where a simple majority must support upholding the challenge.

The group’s efforts go beyond the Electoral Count Act and include discussing making it a federal crime to harass poll workers or election officials and giving states grants to improve their own election systems. And Collins also said that her group is also looking at “what you do if there are duplicates, or competing would be the better word, competing slates of electors.”

The group’s talks have the blessing of Senate GOP Leader Mitch McConnell (Ky.), who reiterated this week, even amid Trump’s criticism, that he believes the Electoral Count Act needs to be changed.

“The best way to characterize how I feel about the Electoral Count Act is that it is flawed and does need to be fixed,” McConnell told reporters.The focus on the Electoral Count Act comes after a Democratic push to pass a sweeping voting rights and election reform bill hit a wall in the Senate with Manchin and Sen. Kyrsten Sinema (D-Ariz.) sticking with their long-held opposition to changing the legislative filibuster, a step that would be required because of GOP opposition to the legislation.

But Collins, asked if pieces of the sweeping election bill had a home in the bipartisan group’s efforts, warned against reviving the months-long fight over voting legislation.

“My goal is to have a bipartisan bill that can secure 60 or more votes in the Senate,” she said. “If we re-litigate issues that have already been rejected by the Senate, then I think it would be very difficult for us to reach the 60-vote margin.”

[Boldfaced added].

 

Mr. Diamond is a senior fellow at the Hoover Institution and a senior fellow in global democracy at the Freeman Spogli Institute for International Studies at Stanford.

January 25, 2022

[Excerpt:]

So far, the Republican leaders of the Senate and House, Mitch McConnell and Kevin McCarthy, have expressed openness to Electoral Count Act reform. Beyond such a bill, Republican senators such as Mitt Romney have also signaled an openness to considering some reforms on voting rights.

We can’t know what might be possible through bipartisan negotiations, but we do know that the Democrats’ two voting rights bills have not gotten passed this year.

 

Momentum grows for Senate to take up voting bills ahead of budget package

Democrats discussing change to filibuster rules to speed action on elections overhaul

Posted December 15, 2021

 

Democrats Can Save Voting by Bringing Back the Mr. Smith Filibuster

A reckoning is coming: They don’t want the Senate to fiddle while democracy burns.

Jonathan Alter

https://www.thedailybeast.com/democrats-can-save-voting-by-bringing-back-the-mr-smith-filibuster

[Excerpts:]

After the failure of three historic voting rights bills, Senate Democrats face a critical question: Will they finally do something about the filibuster?

For months, much of the press has wrongly covered the issue as a binary choice: end the filibuster or keep it. Elimination has never been a realistic option. A handful of Democratic senators have made it clear they won’t get rid of it altogether, for fear of what would happen when the shoe is on the other—Republican—foot.

But keeping the filibuster intact is no longer tenable, either. As Joe Manchin learned last month when no Republicans backed the voting rights bill he co-authored, federal action to override new state-level voter suppression is impossible under current Senate rules.

Democrats are now in agreement that, as Majority Whip Dick Durbin put it, a “reckoning” is coming on the filibuster. They don’t want the Senate to fiddle while democracy burns.

So that leaves the option of reforming the filibuster, which President Biden endorsed as an idea in his CNN Town Hall last month with Anderson Cooper. But how?

The most common reform idea is the so-called “carve-out,” under which Democrats would change the rules so that the filibuster does not apply to voting rights bills.

The Senate has already established three carve-outs—on the tax and spending bills that are part of the budget reconciliation process (1980); executive branch and judicial nominations (2013); and Supreme Court nominations (2017).

The votes don’t seem to be there for a fourth, with Senators Krysten Sinema and Joe Manchin skeptical of a carve-out on voting that would letRepublicans, when they regain power, easily repeal what the Democrats pass and enact damaging national voter suppression bills.

But Manchin has said “failure is not an option” on the Freedom to Vote Act he sponsored, and he and Sinema have both strongly hinted they are open to the “talking filibuster”—also known as “the Jimmy Stewart filibuster” after Senator Jefferson Smith holding the floor all night in the 1939 classic, Mr. Smith Goes to Washington.

 

Nov. 21, 2021

We, the undersigned, are scholars of democracy writing in support of the Freedom to Vote Act, the most important piece of legislation to defend and strengthen American democracy since the Voting Rights Act of 1965. This bill would protect our elections from interference, partisan gerrymandering, dark money, and voter suppression. We urge all members of Congress to pass the bill, if necessary by suspending the Senate filibuster rule and using a simple majority vote.

This is no ordinary moment in the course of our democracy. It is a moment of great peril and risk.

Though disputes over the legitimacy of America’s elections have been growing for two decades, they have taken a catastrophic turn since the 2020 election. The “Big Lie” of a stolen election is now widely accepted among Republican voters, and support for it has become a litmus test for Republicans running for public office. Republican state legislatures in Georgia, Florida, Texas, and across the country have enacted partisan laws intended to make it harder for Democrats to win elections. Most alarmingly, these laws have forged legal pathways for partisan politicians to overturn state election results if they are dissatisfied with the outcome.

The partisan politicization of what has long been trustworthy, non-partisan administration of elections represents a clear and present threat to the future of electoral democracy in the United States. The history of other crisis-ridden democracies tells us this threat cannot be wished away. It must be promptly and forthrightly confronted. Failure to pass the Freedom to Vote Act would heighten post-election disputes, weaken government legitimacy, and damage America’s international reputation as a beacon of democracy in the world.

Each branch of government has a role to play in protecting free and fair elections, but Congress’s responsibility looms largest. After the Civil War, when the path of American democracy was highly uncertain, Congress built the foundations of our modern democracy by passing two constitutional amendments and five pieces of legislation to protect the right of African Americans to vote. All were passed on party-line votes. But in 1890, the Senate failed to break a filibuster on a sixth piece of legislation: the Federal Elections Bill (also known as the Lodge Bill), which would have pushed back against voting rights violations in the South.

The upshot of that critical vote was that southern states, in the absence of any federal supervision, were allowed to pursue the wholesale disenfranchisement of African Americans for the next 75 years. By a tiny margin in one branch of Congress, American democracy took a giant leap backwards.

Protecting future elections from subversion, providing equal opportunities for all citizens to participate, drawing fair district boundaries, strengthening transparency over money in politics, and facilitating impartial electoral administration should not be partisan matters. Unfortunately, however, across state legislatures, Republicans have challenged the legitimacy of the 2020 U.S. presidential election and altered election rules on party-line votes, with a clear intent to entrench minority rule.

If Congress fails to pass the Freedom to Vote Act, American democracy will be at critical risk. Not only could this failure undermine the minimum condition for electoral democracy—free and fair elections—but it would in turn likely result in an extended period of minority rule, which a majority of the country would reject as undemocratic and illegitimate. This would have grave consequences not only for our democracy, but for political order, economic prosperity, and the national security of the United States as well.

Defenders of democracy in America still have a slim window of opportunity to act. But time is ticking away, and midnight is approaching. To lose our democracy but preserve the filibuster in its current form—in which a minority can block popular legislation without even having to hold the floor—would be a short-sighted mistake of historic proportions. The remarkable history of the American system of government is replete with critical, generational moments in which liberal democracy itself was under threat, and Congress asserted its central leadership role in proving that a system of free and fair elections can work.

We urge the Senate to suspend the filibuster rule for this measure and pass the Freedom to Vote Act. This would uphold the Senate’s noblest tradition of preserving and strengthening American democracy.

This list was last updated on 11/24/21 at 5:00 p.m. EST.

John H. Aldrich
Professor of Political Science

Duke University

Barry Ames
Professor of Comparative Politics emeritus

University of Pittsburgh

Ellen Andersen
Associate Professor of Political Science

University of Vermont

Elisabeth Anker
Associate Professor of American Studies and Political Science

The George Washington University

Deborah Avant
Distinguished University Professor, International Studies

University of Denver

Naazneen Barma
Associate Professor of International Studies

University of Denver

Frank R. Baumgartner
Professor of Political Science

University of North Carolina at Chapel Hill

Karen Beckwith
Professor of Political Science
Case Western Reserve University

Christopher Beem
Associate Research Professor

Penn State University

Cristina Beltrán
Associate Professor in the Department of Social & Cultural Analysis

New York University

Jonathan Bendor
Professor of Political Economy
Stanford University

Sheri Berman
Professor of Political Science

Barnard College, Columbia University

Steffen Blings
Assistant Professor of Political Science

Utah State University

Adam Bonica
Associate Professor of Political Science

Stanford University

Henry E. Brady
Professor of Political Science and Public Policy

University of California, Berkeley

Nadia E. Brown
Professor of Government and Director of Women’s and Gender Studies
Georgetown University

Eileen Burgin
Professor of Political Science

University of Vermont

Jennifer Bussell
Associate Professor of Political Science and Public Policy

University of California, Berkeley

John M. Carey
Professor of Government

Dartmouth College

Ivy A.M. Cargile
Associate Professor of Political Science

California State University, Bakersfield

Ryan E. Carlin
Professor of Political Science

Georgia State University

Michael Chwe
Professor and Chair, Political Science

University of California, Los Angeles

Alexandra Cirone
Assistant Professor of Government
Cornell University

David B. Cohen
Professor of Political Science

The University of Akron

Joshua Cohen
Distinguished Senior Fellow

University of California, Berkeley

Mark Copelovitch
Professor of Political Science and Public Affairs

University of Wisconsin – Madison

Michael Coppedge
Professor of Political Science

University of Notre Dame

Katherine J. Cramer
Professor of Political Science

University of Wisconsin-Madison

Ingrid Creppell
Associate Professor of Political Science & International Affairs

George Washington University

Melody Crowder-Meyer
Assistant Professor of Political Science
Davidson College

Maurice T. Cunningham
Associate Professor of Political Science (retired)
University of Massachusetts at Boston

Matthew Dallek
Professor of Political Management

George Washington University

Erica De Bruin
Associate Professor of Government
Hamilton College

Shirin Deylami
Professor of Political Science

Western Washington University

Larry Diamond
Senior Fellow, Hoover Institution and Freeman Spogli Institute

Senate GOP blocks latest Dem push for voting reform

Alaska’s Lisa Murkowski was the only Republican to join Democrats on the bill named for the late Rep. John Lewis.

[Excerpt:]

Senate Republicans on Wednesday blocked a fourth Democratic attempt to begin considering elections and voting legislation on the floor, casting fresh doubt on the majority party’s ability to enact any type of reform this Congress.

In a 50-49 vote, Sen. Lisa Murkowski (R-Alaska) joined Democrats to move forward on legislation that would restore a requirement that certain jurisdictions receive a green light from the Justice Department or a D.C.-based federal court before changing voting laws or procedure.

 

The Briefing, The Brennan Center for Justice

Nov. 2, 2021

With the addition of Sens. Joe Manchin (D-WV) and Lisa Murkowski (R-AK) as co-sponsors, a majority of the Senate now supports the John R. Lewis Voting Rights Advancement Act.
Similarly, a majority supports, and has voted for, the Freedom to Vote Act, which would establish national standards on voting, redistricting, and campaign finance.
These bills are extraordinarily important. They are vital to defend our democracy from the assault it faces — critical to ensure that elections are free and fair, critical to ensure that we do not choke off our emerging multiracial democracy.
The choice before the Senate, then, is rather stark: voting rights or obstruction.
Murkowski’s support is greatly welcomed. She has supported the John Lewis Voting Rights Act before. But the central fact is that these vital pieces of legislation have run into a brick wall of partisan obstruction by the Senate Republican minority. That minority will not even allow a vote.
That partisan divide was not always the norm. The last time the 1965 Voting Rights Act was considered for renewal by the Senate, in 2006, it passed 98–0.

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There are ways to move these bills to a final vote without jettisoning the filibuster, ways that preserve the Senate’s cherished (if somewhat illusory) values of debate and conciliation. The filibuster in this instance does not facilitate compromise or conciliation. It allows a minority to block needed legislation. The Senate has found many ways to ease passage of vital legislation despite Senate rules. This is such a time, and the stakes are that high.
The Voting Rights Act of 1965 was perhaps the most effective civil rights law in American history. It changed the South, and the country. By 2012, Black voter turnout had equaled or exceeded white voter turnout in states like Louisiana, Alabama, and South Carolina. Everyone, everyone, agreed that the Voting Rights Act worked.
In 2013, however, the Supreme Court triggered the collapse of that consensus. In Shelby County v. Holder, five justices ruled that the Voting Rights Act was outdated, and they eviscerated its protections. The four dissenting justices predicted the decision would allow the return of discriminatory voting laws.
The dissenters were right. This year alone, 19 states have passed dozens of laws making it harder to vote. Many of those states would have been required to seek federal permission had the Voting Rights Act stood.
These restrictive new laws have disproportionately impacted voters of color. Steady gains in Black voting rates have been reversed. In most of the states where Black voter turnout had surged prior to Shelby County, white voter turnout rates once again far exceed rates for Black voters. It’s difficult to imagine more powerful empirical evidence that the original safeguards of the Voting Rights Act remain necessary.
The Senate will vote on advancing the John Lewis Voting Rights Act tomorrow. We expect it to garner a majority — a majority that represents a major step toward the broad, longstanding public consensus that voting rights and equality under the law are sacred in the United States. That majority must, one way or another, rule on this most crucial of issues.

 

There’s Not Much Else to Say About The Path For Federal Voting Rights Legislation 

BY MATT SHUMAN, THE FRANCHISE BY TPM

OCT. 25, 2021

If there was a “plan” or “timeline” for federal voting rights legislation in the U.S. Congress, it has run its course. Several iterations of voting rights legislation have been introduced and have failed, despite Democrats’ control of both chambers. It is now clearer than ever: If Democrats want action, it must go through the filibuster.

 

Activists try to keep up pressure to pass elections and voting bills

Protests planned to urge Biden to call for changing filibuster

Posted October 13, 2021 

Groups pushing for voting rights and elections legislation in the Senate are planning a sustained campaign over the coming weeks, aiming to put the issue top of mind for Democrats, even as other matters have dominated in the chamber.

A broad coalition of liberal organizations will organize regular demonstrations outside the White House, other rallies and a multimodal relay from West Virginia to the U.S. Capitol. The effort is part of a push to keep the measures high on the agenda as negotiations over a reconciliation package, an infrastructure bill and raising the nation’s debt limit have taken center stage.

“We’re going to keep up and escalate pressure throughout this month and throughout November,” said Jana Morgan, director of the Declaration for American Democracy Coalition, an umbrella group behind the advocacy push.

The group has been pushing for passage of two bills. One is a scaled-back version of a House-passed measure to overhaul elections and campaign finance laws. Dubbed the Freedom to Vote Act, it was endorsed by West Virginia Democratic Sen. Joe Manchin III. The other is the Senate version of a House-passed bill to restore major sections of the Voting Rights Act that the Supreme Court scrapped in a 2013 decision, Shelby County v. Holder.

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A Senate Judiciary panel’s hearing on that bill, named for the late Democratic Rep. John Lewis of Georgia, was interrupted last week by votes and caucus meetings over the debt limit.

Republicans, led in opposition in the Senate by Minority Leader Mitch McConnell, have attacked the measure as a power grab by Democrats that would let the federal government usurp local and state control over running elections. McConnell has called the bill “a solution in search of a problem” that was driven by “coordinated lies about commonsense election laws that various states have passed.” Despite Manchin’s self-proclaimed overtures to Republicans, none has endorsed the legislation.

Senate Majority Leader Charles E. Schumer has said he will bring the Freedom to Vote bill to the floor for a procedural vote, perhaps as soon as next week, although the situation remains in flux and subject to other priorities. A similar procedural effort in June to begin debate on the House-passed version of the bill, ostensibly so Manchin could try to amend it, was defeated in a 50-50 vote when 60 votes were needed to end a filibuster.

Lisa Gilbert, executive vice president of Public Citizen, which supports the bills, said proponents are employing a “slew of tactics” to garner attention. She said getting the legislation through the chamber remained a “major priority” for Democratic leaders.

But Democratic lawmakers are also focused on a sweeping tax and social programs package that would move under the reconciliation process so that it could pass along party lines. They’re also dealing with internal disagreement over House passage of an infrastructure package, which senators passed with bipartisan support.

“There are so many moving pieces,” Gilbert said.

Focus on filibuster

If the partisan conflict over any of the other items, such as the debt limit, were to trigger more serious discussion among Democratic holdouts, such as Manchin or Arizona Democratic Sen. Kyrsten Sinema, to roll back or modify the chamber’s 60-vote threshold to overcome a filibuster, that could have a trickle-down effect on the voting and elections measures.

“We think Democrats should use any means necessary to pass the Freedom to Vote Act, including rules reforms as needed,” Gilbert said.

The focus on the filibuster in the voting and elections debate is a chief reason why activists plan to target the White House in the coming weeks. They want President Joe Biden to speak out forcefully in support of changing the filibuster, if that’s what it takes to get their bills to his desk.

Morgan, the coalition director, said five advocates, including People for the American Way President Ben Jealous, were arrested outside the White House last week. They were ultimately not charged with a crime, she said, but spent the night in jail.

“We are showing up and are going to force action,” she said. “We know that this procedural rule, the filibuster, is blocking progress, and we want President Biden to weigh in on this. We want to see President Biden using every lever of power to compel the Senate to move on this.”

Advocates see the Freedom to Vote legislation as a way to overturn or curb state laws where Republican legislatures have rolled back some of the 2020 pandemic voting practices, such as universal balloting by mail or early voting.

“We’ve got a really crowded Senate agenda, but the Center for American Progress and the Declaration for American Democracy Coalition are fighting every day to ensure that the Freedom to Vote Act stays near the top of the agenda,” said Michael Sozan of the Center for American Progress. “Our democracy is at stake. Yes, infrastructure and Build Back Better are incredibly important, but equally important is the infrastructure of our democracy.”

 

The Freedom to Vote Act Would Counteract State Laws That Undermine Elections

October 5, 2021

The U.S. Senate recently took another step toward passing transformative voting rights and election reform legislation, with Senate Democrats introducing the Freedom to Vote Act on September 14, 2021. This far-reaching reform package would take actions such as reducing the influence of money in politics, ending partisan gerrymandering, and fortifying U.S. elections against foreign interference. But perhaps most importantly, this legislation would also set nationwide voting standards to help counteract anti-democratic laws passed by legislatures in at least 17 states. These state laws are often aimed at disadvantaging historically underrepresented communities, including communities of color, as well as lower-income voters and people with disabilities. Moreover, some of these state laws facilitate a growing threat: that partisan, conspiracy-minded election officials could sabotage legitimate election results.

For these reasons, it is imperative to expeditiously pass federal legislation to fortify free and fair elections against partisan manipulation. If Senate Republicans again block progress on comprehensive voting rights legislation, Senate Democrats must take action with a majority vote to safeguard the very foundation of American democracy—ensuring that voters, not politicians, get to decide the outcome of elections. The filibuster, an anachronistic Senate rule not conceived by the U.S. Constitution, cannot be allowed to take precedence over preserving the democratic principles on which America was founded.

This analysis highlights how specific components of the anti-democratic laws passed in four key states—Arizona, Florida, Georgia, and Texas—will create new barriers for millions of Americans to access the ballot and explains how provisions in the Freedom to Vote Act will specifically counter these laws and help prevent political interference in elections.

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Background

Laws aimed at suppressing Black, Indigenous, and other people of color, as well as people with disabilities, in order to create electoral advantage for one political party over another unfortunately have a long and shameful history in the United States. Former President Donald Trump and his allies have modernized and exacerbated these efforts by spreading lies about free and fair election processes. Long before Trump lost the 2020 election, he falsely claimed that the election would be fraudulently conducted and that the result would be invalid if he lost, despite the fact that voter fraud is exceedingly rare.

Trump and his allies continued peddling their “big lie” after the election, attempting in multiple states to overturn the legitimate victory of Joe Biden. They falsely asserted that there was an array of different voting irregularities—often in predominantly Black and Latino communities—and that millions of votes should have been invalidated. Along the way, Trump tried to pressure state election officials to overturn the valid results, using a number of thoroughly discredited theories antithetical to American democracy.

Trump’s undemocratic crusade culminated in the violent January 6 insurrection at the U.S. Capitol, where his supporters stormed the building, attempting to disrupt the constitutional counting of electors. Within hours, 147 Republican members of Congressvoted to challenge the duly chosen electors in at least one state. Trump’s misconduct resulted in his second impeachment by the U.S. House of Representatives.

Despite Trump’s attempts to stop the peaceful transition of power, President Biden was duly inaugurated as president. But these events have not dampened Trump’s quest to invalidate the presidential election. Trump has encouraged sham election auditsin several states. Perhaps more alarming, lawmakers across the nation have assisted Trump’s anti-democratic efforts, jamming through a plethora of laws in at least 17 statesthat suppress the vote and increase the risk that partisan officials will undermine the results. Many of these state laws have two related purposes: (1) to make it harder for communities of color and other historically underrepresented communities to vote, and (2) to make it easier for partisan officials to undermine valid election results with which they disagree.

In the meantime, congressional Democrats pushed for the passage of sweeping legislation to set national federal election standards, an authority granted to Congress in the U.S. Constitution. In March, House Democrats passed their comprehensive democracy legislation, the For the People Act (H.R.1). After Senate Republicans blocked any progress on the Senate’s parallel legislation, Sen. Joe Manchin (D-WV) worked with several other Democratic senators to craft a somewhat more limited bill, the Freedom to Vote Act, partly in an effort to attract Senate Republicans’ support. Their efforts also incorporated feedback from state and local election officials from around the nation, to whom the legislation provides greater flexibility to implement the new provisions.

If enacted, the Freedom to Vote Act would be a giant step toward building a stronger, more inclusive democracy where all Americans can have confidence in election outcomes, even if this compromise legislation omits some important provisions from the For the People Act. President Biden voiced strong support for the legislation and reportedly is willing to ask senators to reform the filibuster in order to pass it. The Freedom to Vote Act is also widely supportedby the American public.

The Freedom to Vote Act has four principal pillars:

  1. It would set national standards to protect and expand the right to vote.
  2. It would help protect the integrity of elections and make it harder for partisan officials to subvert valid election results.
  3. It would prohibit partisan gerrymandering and empower courts to invalidate overly partisan maps, an urgently needed change given that many states have already begun their 10-year redistricting process.
  4. It would reduce the power of big money in elections by, for example, shining a bright light on so-called dark money campaign spending and implementing a cutting-edge voluntary small-donor public financing system for House elections.

How the Freedom to Vote Act would help curb voter suppression and prevent election sabotage

Since the start of 2021, lawmakers across the country have filed hundreds of anti-voter bills in state legislatures. Many of these bills would curtail policies such as vote by mail, early voting, and curbside voting—secure methods that have made voting more convenient for millions of Americans. Other bills would severely restrict who is allowed to assist voters in returning their ballots and would force voters to navigate needless, onerous obstacles before they are allowed to even obtain a ballot or cast one that will be counted. Often, these anti-voting bills target Black, Indigenous, and other people of color as well as people with disabilities and members of other historically underrepresented communities.

Concurrently, the past year has seen rapid growth in legislative proposals that would increase the ability of partisan state officials to interfere with the results of elections. According to a report released in June by States United Democracy Center, Protect Democracy, and Law Forward, 41 states have already introduced 216 bills in 2021 that would allow legislators to meddle with election administration. These bills include provisions that would give partisan legislatures the final sign-off on election results, greater control over election personnel, and the ability to interfere with “the minutiae of election administration”—and would impose criminal penalties on election administrators for small missteps.

So far, only 24 of those bills have been enacted into law. But the trend is likely to continue, as more and more candidates and elected officials aligned with Donald Trump embrace the myth of a stolen election as a core issue.

The Freedom to Vote Act includes strong provisions that would protect the right to vote and counter state anti-voting efforts. Other provisions would defend free election processes and make them less vulnerable to political interference. Some of the bill’s most notable provisions include the following actions.

Bolster voter registration

  • Establishes nationwide automatic voter registration (AVR) through state departments of motor vehicles with grandfathering provisions for existing AVR programs and options to expand to additional state agencies
  • Creates nationwide online registration and streamlined processes
  • Establishes nationwide same-day registration during early voting and on Election Day
  • Establishes nationwide preregistration for 16- and 17-year-olds
  • Grants voter registration privacy protections for voters who have experienced domestic or dating violence, stalking, sexual assault, or trafficking

Protect in-person voting access

  • Guarantees at least 13 days of early voting, including on weekends
  • Makes Election Day a legal holiday
  • Grants voting protections for people with disabilities who are subject to guardianship
  • Permits Indigenous tribes to designate ballot pickup and collection centers on tribal lands, which can serve as voters’ residential and mailing address for election purposes
  • Tasks jurisdictions with ensuring that no voter is forced to wait more than 30 minutes to vote at polling places
  • Requires jurisdictions to provide voters with timely notifications of polling place changes
  • Restricts states from limiting polling place hours and bans states from prohibiting curbside voting
  • Prohibits states from restricting distribution of food and beverages to voters waiting in line to vote
  • Prohibits states with voter ID requirements from imposing strict limits on allowable forms of identification

Preserve mail voting

  • Sets up a nationwide system of no-excuse vote by mail with ballot tracking; prepaid postage; permanent mail voting for voters choosing to receive a mail ballot each election; due process procedures for signature matching and signature curing processes; secure and accessible ballot drop boxes, including on tribal lands; and prohibitions against requiring strict forms of identification or witness and notary signatures to obtain or cast a mail ballot
  • Empowers third parties such as get out the vote (GOTV) groups to distribute mail ballot applications
  • Authorizes election officials to treat voter registration forms as applications for mail voting
  • Funds grant programs for improving access to voter registration and voting for people with disabilities as well as pilot programs for registering and voting privately and independently from home
  • Requires voting protections for U.S. citizens and uniformed service members and their families living and serving overseas

Safeguard election participation

  • Expands access to and availability of voter registration and voting information, including for people with disabilities and people with limited English proficiency
  • Establishes a private right of action for Americans who are denied their right to vote
  • Restores voting rights to formerly incarcerated people
  • Prohibits jurisdictions from using unreliable information or discriminatory methods to remove voters from voter registration rolls, such as the fact that a registrant did not vote in one or more past election

Protect elections against political interference and bolster election security

  • Prohibits firing of local election officials without cause
  • Enhances rules for preservation of election-related records and equipment
  • Broadly prohibits undue burdens on the right to vote
  • Provides grants to states for poll worker recruitment and training
  • Protects against poll observers harassing voters or interfering with elections
  • Requires candidates and political committees to report foreign contacts
  • Requires use of voter-verified paper ballots to ensure that election results are secure and can be accurately reviewed
  • Phases in a requirement that states conduct post-election audits
  • Sets out requirements for counting provisional ballots
  • Establishes new safeguards for the security of voting machines and data

State-by-state analysis of how the Freedom to Vote Act would counteract laws that undermine elections

The above provisions would counteract many of the worst state efforts to undermine voting rights and U.S. democracy. The four states examined below—Arizona, Florida, Georgia, and Texas—illustrate this point. These states have already adopted anti-democratic laws that, if left to stand, would block voters from casting ballots in upcoming elections and allow partisan actors to manipulate election outcomes for personal gain.

Arizona

Last spring, Arizona Gov. Doug Ducey (R) signed a series of anti-voting laws restricting access to policies that helped Arizona voters participate in the 2020 election, namely vote by mail, which about 86 percent of Arizona voters used to cast ballots in the 2020 election. The state has also made headlines for launching a partisan and conspiracy-laden investigation of Arizona’s 2020 election results, conducted by a private company whose founder made pro-Trump statements. The review ultimately—and unsurprisingly—uncovered no evidence of fraud. But it nonetheless helped fuel baseless suspicionsabout the results and has even led other states, including TexasWisconsin, and Pennsylvania, to pursue similar “investigations.”

Here is what Arizona’s laws do and how the Freedom to Vote Act would remedy them:

  • Arizona’s new law

In Arizona, voters who are deemed “inactive”—meaning they do not vote by mail in two consecutive election cycles and fail to respond to a mailer within 90 days—will be purged from the state’s permanent early voting list and will no longerautomatically receive ballots each cycle. Opponents of the law claim that roughly 150,000 people in Arizona will be removed as a result.

The Freedom to Vote Act

The Freedom to Vote Act does not distinguish between frequent and infrequent mail voters and does not punish people for choosing not to cast their ballot by mail every election. Voters choosing to receive a mail ballot each election would remain on permanent mail voting lists unless they were no longer eligible to vote in Arizona or have submitted a written request for removal.

  • Arizona’s new law

Arizona law prohibits election officials from preemptively mailing mail ballots to voters who are not on the state’s permanent early voting list unless the voter has specifically requested one.

The Freedom to Vote Act

Election officials are permitted to treat voter registration forms as mail ballot applications so that voters do not have to undertake a separate process for requesting a ballot.

  • Arizona’s new law

State law now requires mail ballots to be signed and received by 7 p.m. on election night. Any mail ballot that is not signed and received by that deadline will be discarded. This will create problems for voters who return their mail ballots mistakenly unsigned in the few days preceding Election Day or on Election Day itself.

The Freedom to Vote Act

Election officials are required to notify voters within one business day if their ballot is received unsigned. The act would give voters three days following the official ballot receipt deadline to sign their ballot in order to have it counted.

  • The Freedom to Vote Act

The Freedom to Vote Act would also strengthen requirements that safeguard election records—so that Arizona and other states could not hand election documents over to private contractors without supervision.

Florida

Florida Gov. Ron DeSantis (R) signed the state’s new anti-voting bill into law in May. The law was signed behind closed doors during a private pro-Trump event, which local media was barred from attending, although the governor did permit Fox News to livestream the event. Florida’s new law includes several election administration changes that will harm Floridians and undercut fair elections in the state.

Here is what Florida’s law does and how the Freedom to Vote Act would remedy it:

  • Florida’s new law

The law places new restrictions on vote by mail by requiring certain voters to provide strict forms of identification to even so much as request a mail ballot. More than 4.5 million Floridians voted by mail in the 2020 election.

The Freedom to Vote Act

The bill would block Florida from requiring strict identification for requesting absentee ballots.

  • Florida’s new law

Floridians used to have the option of adding their names to permanent mail voting lists and receiving a mail ballot automatically for each cycle over a four-year period. The new state law, however, forces Floridians to navigate onerous mail ballot request processes more frequently by requiring voters to request mail ballots everytwo years.

The Freedom to Vote Act

Voters choosing to receive a mail ballot each election would remain on permanent mail voting lists unless and until they are no longer registered in the state of Florida or have provided the state with written notice that they wish to be removed.

  • Florida’s new law

Florida’s law limits drop box availability to early voting periods and to official county election offices and voting locations, curtailing their usefulness by limiting availability. About 1.5 million Floridians utilized ballot drop boxes in the 2020 election.

The Freedom to Vote Act

The Freedom to Vote Act would establish minimum standards for ballot drop boxes with requirements for at least one drop box per jurisdiction, which must be accessible during reasonable hours throughout early and regular voting periods. Drop boxes must be made available to voters as soon as a jurisdiction begins sending mail ballots to voters and must continue through the end of Election Day. Within each jurisdiction, at least 25 percent of drop boxes—or one, whichever is greater—must be accessible 24 hours daily.

Georgia

In March, Georgia enacted an expansive law that makes voting more difficult and opens the door to political interference in state elections. The nearly 100-page law drew nationwide criticism for its unconscionable voting restrictions and blatant partisan power grabs.

Here is what Georgia’s law does and how the Freedom to Vote Act would remedy it:

  • Georgia’s new law

Georgia’s law prohibits people from providing food and water to voters waiting in line at polling places.

The Freedom to Vote Act

The Freedom to Vote Act would nullify this prohibition.

  • Georgia’s new law

The state law bars election officials from mailing mail ballot applications to registered voters, which is an action some election officials took last year during the pandemic to ensure that people could vote even if they did not feel safe doing so in person.

The Freedom to Vote Act

The bill would allow Georgia election officials to treat voter registration forms as applications for mail ballots, thereby permitting them to proactively send mail ballots to registered voters opting to vote by mail without voters having to make a separate request.

  • Georgia’s new law

Georgia’s law requires voters casting mail ballots to provide strict forms of identification to receive and return mail ballots. More than 1.3 million Georgians cast ballots by mail in the 2020 election.

The Freedom to Vote Act

The Freedom to Vote Act would block Georgia from requiring people to provide strict proof of eligibility to obtain or return a mail ballot.

  • Georgia’s new law

Under Georgia’s law, jurisdictions may supply one ballot drop box for returning mail ballots. Additional drop boxes may be allowed, but the total number is limited to the lesser of one per every 100,000 active voters—that is, voters who cast a ballot in the most recent election—or the number of early voting locations in a county. This will reduce access for largely populated jurisdictions such as Fulton, Gwinnett, DeKalb, and Cobb counties.

The Freedom to Vote Act

The bill would require each jurisdiction to have at least one drop box per every 45,000 registered voters for any election held before 2024. For 2024 onward, jurisdictions would need to offer at least one drop box per every 45,000 registered voters or one box per every 15,000 voters who voted by mail in the most recent election, whichever is greater.

  • Georgia’s new law

Georgia’s law requires all drop boxes to be located at official election offices and inside early voting locations, limiting their availability to hours when many voters are at school or work. Furthermore, drop boxes are only allowed during early voting periods.

The Freedom to Vote Act

The Freedom to Vote Act would supersede Georgia’s ballot drop box restrictions by requiring 24-hour access to at least one ballot drop box. It would also require drop boxes to be made available beginning on the first day that officials begin sending mail ballots through the time at which polls close on election night.

  • Georgia’s new law

Georgia’s law limits weekday early voting to the hours of 9 a.m. to 5 p.m. Early voting hours may be extended, but in no case can they take place outside the hours of 7 a.m. and 7 p.m. In 2020, more than 2.7 million Georgians voted early in person.

The Freedom to Vote Act

The bill would require an early voting period that is at least 13 days long, including Saturdays and Sundays. Voting locations would be required to open for at least 10 hours daily, including for some period before and after business hours.

  • Georgia’s new law

Under Georgia’s law, voters who mistakenly go to the wrong precinct will be turned away instead of being offered a provisional ballot in many cases. Some 44 percent of provisional ballots cast in Georgia during the 2020 election were from people who accidentally showed up at the wrong precinct.

The Freedom to Vote Act

The bill would invalidate Georgia’s strict rules on provisional voting by allowing voters who mistakenly show up at an incorrect precinct within the county where they are registered to vote to cast a provisional ballot and have it counted.

  • Georgia’s new law

Georgia’s law allows the State Election Board to investigate and replace local election officials, potentially injecting political interference into local election administration.

The Freedom to Vote Act

The Freedom to Vote Act would prohibit the removal of local election officials except for “gross negligence, neglect of duty, or malfeasance in office.”

  • The Freedom to Vote Act

The bill would also make it illegal to “intimidate, threaten, [or] coerce” election officials—a protection against the type of pressure that was put on Georgia Secretary of State Brad Raffensperger to change the results of the last presidential election.

Texas

In September 2021, despite a hard-fought, monthslong effort by many Democratic state lawmakers seeking to block it from advancing, Texas became the latest state to adopt a sweeping anti-voting law that also gave unprecedented power to partisan poll watchers.

Here is what Texas’ law does and how the Freedom to Vote Act would remedy it:

  • Texas’ new law

Texas already has one of the most restrictive mail voting programs in the country, limiting access to only a limited class of people, namely elderly people; people detained in jail or located outside the jurisdiction during the election; and certain people who are ill or have disabilities. Still, for those limited few who are eligible for mail ballots, the state’s new law requires them to provide strict forms of identification to receive or return their ballot. Almost 1 million Texans voted by mail in the 2020 election.

The Freedom to Vote Act

The bill would allow any voter to cast a ballot by mail and would block Texas from requiring mail voters to provide strict identification to obtain or return a mail ballot.

  • Texas’ new law

Texas’ law makes it a felony for election officials to preemptively send mail ballot applications to registered voters. Some Texas counties tried to preemptively send mail ballot applications to elderly voters and voters with disabilities during the pandemic and when postal delays risked ballot request forms not being received on time. The state law similarly blocks officials from facilitating ballot application distribution by third-party groups, such as GOTV groups.

The Freedom to Vote Act

The Freedom to Vote Act would empower election officials to treat voter registration forms as mail ballot applications, thereby allowing them to proactively send mail ballots to voters opting to vote by mail without voters having to navigate a separate ballot application process. The bill would further allow distribution of mail voting applications by third parties.

  • Texas’ new law

The new state law prohibits ballot drop boxes. Of voters nationwide who cast ballots by mail, 41 percent reported utilizing ballot drop boxes to return their ballot.

The Freedom to Vote Act

The bill would negate the state’s ballot drop box ban by requiring each jurisdiction to have at least one drop box per every 45,000 registered voters in elections occurring before 2024 and the greater of that or one box per every 15,000 voters who voted by mail in the most recent election from 2024 onward.

  • Texas’ new law

Texas’ law bans curbside voting. Curbside voting was greatly relied upon in heavily populated Harris County. Curbside voting proved vital for protecting voters during the pandemic by enabling them to cast an in-person ballot without leaving their car or having to enter a crowded polling location. In Harris County, 1 in 10 in-person early voters utilized curbside voting.

The Freedom to Vote Act

The bill would bar states from banning curbside voting.

  • Texas’ new law

Texas’ law allows poll watchers to have “free movement” in a polling place—potentially disrupting the voting process or violating voters’ privacy—and even goes so far as to criminalize the obstruction of a poll watcher’s view.

The Freedom to Vote Act

The bill would require election observers to stay at least 8 feet away from a voter trying to cast a ballot or from poll workers trying to process ballots. Furthermore, it would prohibit observers from challenging anyone’s eligibility to vote without personal knowledge of the grounds for ineligibility and a good faith factual basis to believe they are ineligible.

Conclusion

America’s dream of an inclusive and fair democracy stands at a pivotal point. The Freedom to Vote Act is likely Congress’ best chance to enact critical legislation to protect voting rights and election integrity as well as prevent partisan gerrymandering and reduce the outsize role of big money in politics. With multiple states enacting laws that strike at the heart of voter access and election integrity, the Senate must fulfill its constitutional duty and act expeditiously to pass the Freedom to Vote Act.

Danielle Root is the director of voting rights and access to justice on the Democracy and Government Reform team at the Center for American Progress.Michael Sozan, a former chief of staff in the U.S. Senate, is a senior fellow at the Center.Alex Tausanovitch is the director of campaign finance and electoral reform on the Democracy and Government Reform teamat the Center.

 

October 5, 2021

Today, in the Senate, Senator Patrick Leahy (D-VT) introduced the John Lewis Voting Rights Advancement Act. This measure would restore the parts of the 1965 Voting Rights Act the Supreme Court gutted in the 2013 Shelby County v. Holder and the 2021 Brnovich v. Democratic National Committee decisions. Of the three voting acts currently in play, the John Lewis Act seems like the easiest to pass, since Congress has repeatedly reauthorized the 1965 Voting Rights Act, most recently in 2006 by a vote of 98–0 in the Senate and 390–33 in the House of Representatives. 

And yet, even this measure will be a hard sell for today’s extremist Republicans. When House Democrats brought the John Lewis bill up for a vote in August, not a single Republican voted for it. 

Letters from an American, Heather Cox Richardson

 

Why the Senate Must Pass the John Lewis Voting Rights Act

The bill would restore crucial protections against racial voter discrimination. 

October 6, 2021

The following is adapted fromoral testimonygiven Wednesday before the Senate Judiciary Committee.

The Voting Rights Act of 1965 is one of the foundational texts of America and a critical bulwark against discrimination in our voting system. Unfortunately, in the last eight years the Supreme Court dealt two serious blows to the law, which is now simply no longer strong enough to protect Americans from increasingly aggressive voting discrimination. The John R. Lewis Voting Rights Advancement Act would strengthen it.

This bill couldn’t come at a more critical time. The scale of the current assault on voting rights is staggering. At least 19 states passed 33 laws this year making it harder to vote, according to our latest count. Many of these laws target voters of color, exacerbating persistent racial disparities in access. Turnout for nonwhite voters is now substantially lower than that for white voters — and has been for at least 25 years. Despite record voter turnout in 2020, only 58 percent of nonwhite voters participated, compared to 71 percent of white voters.

Further, we are at the start of a redistricting cycle that is already showing signs of gerrymandering targeting communities of color. And an alarming wave of efforts to sabotage elections compounds these problems.

Only Congress can solve this crisis.

I will focus on one aspect of the John Lewis Voting Rights Act: the geographic preclearance formula. The key point: it is new, updated, and laser-focused.

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It is necessary because even though voting discrimination is now widespread, it is much more prevalent in some places than others. According to our count, there were over 120 voting rights violations over the past 25 years in the 7 states likely to be covered under this bill, and fewer than 50 in the 39 states that are not close to coverage. Without preclearance, discrimination has been impossible to root out in those places.

States have piled voting restriction upon voting restriction, passing new ones as soon as old ones are struck down, in what amounts to legal whack-a-mole. For instance, the new Georgia and Texas vote suppression laws, the worst in the country, come after years of earlier voting hurdles in those states.

States routinely devise devious new ways to discriminate in voting — what President Lyndon Johnson called “ingenious discrimination” when first enacting the Voting Rights Act. 

The geographic coverage formula has been updated, and tailored with precision to meet current conditions, following the Supreme Court’s guidance. To ensure the formula targets illegal discrimination, it relies on the best evidence — established violations of voting discrimination laws. To ensure the formula targets states with a persistent pattern of discrimination, it captures only states that meet a high numeric threshold of violations over the past 25 years.

This 25-year review period is critical, ensuring enough time to identify where discrimination is persistent. To ensure it targets places where discrimination is current, the review period is not frozen in time, but rolls forward.

The duration of preclearance coverage is limited to 10 years, so places without recent violations automatically drop out, and they can also easily bail out before then.

Of course, stronger tools are needed to address discrimination in other places too. That’s why it’s important that the bill strengthens Section 2 of the Voting Rights Act and expands other national protections too.

As Justice Elena Kagan observed in her recent dissent in the recent case Brnovich v.Democratic National Committee, this is “a perilous moment for the Nation’s commitment to equal citizenship,” an “era of voting-rights retrenchment.”

Safeguarding our democracy and protecting voting rights is one of the most sacred responsibilities this body has. The House has passed this bill. It’s now up to the Senate to act — without delay — to pass both the John Lewis Voting Rights Act and the Freedom to Vote Act.

 

Inside Manchin’s search for GOP votes on elections reform

Some Senate Republicans are engaging in preliminary discussions with the West Virginia senator in his longshot effort for a bipartisan compromise on voting.

10/01/2021

Senate Majority Leader Chuck Schumer has vowed that the Senate will soon vote on the latest Democratic proposal, which would establish some federally mandated voting rules, including early voting options and expanding access to mail ballots. In addition, the legislation requires a much larger swath of politically active groups to disclose their donors and adds more transparency requirements. 

Schumer has said that he is giving Manchin time to reach out to Senate Republicans before putting the legislation on the floor. But so far it has no support from the 50 members of the GOP caucus, who say it’s an effort to federalize the U.S. election system and interfere with state rights.

Many proponents of Democrats’ election and ethics reform package argue that efforts at a bipartisan compromise are futile. Progressives have long wanted the legislation to serve as the vehicle for killing the legislative filibuster and Democrats argue passing the bill in the near future is necessary to combat restrictive GOP state voting laws.

But with no change in Senate rules, the latest Democratic plan has no chance of passage. Some Democrats had privately hoped that Manchin could be swayed to change the chamber’s rules if he tried and failed to get Republicans on board. Manchin, along with Sen. Kyrsten Sinema (D-Ariz.), is adamantly against both nixing the legislative filibuster and creating a carveout just for voting legislation.

Sen. Thom Tillis (R-N.C.), meanwhile, has also spoken with both Manchin and Leahy about voting legislation. But Tillis acknowledged that at the moment “there’s a pretty wide gap.” 

I always look for opportunities to work with [Manchin],” Tillis said. “We’ve had our staff to talk with Leahy and others but I think in the same way that they have red lines they have to see, we have some red lines on things we can’t allow.”

 

Senate Democrats unveil new voting rights bill

BY REBECCA BEITSCH AND MARTY JOHNSON – 09/14/21 

A group of Senate Democrats unveiled new voting rights legislation on Tuesday in another attempt by the party to pass sweeping changes to federal elections in the face of a GOP filibuster. 

The new bill, called the Freedom to Vote Act, was released by Sen. Amy Klobuchar (D-Minn.) and several co-sponsors, builds on a framework proposed earlier this year by Sen. Joe Manchin (D-W.Va.) as well as the sweeping For the People Act, which Senate Republicans blocked in June. 

Though narrower than previous iterations, the 592 page bill would still enact major reforms to America’s voting systems, including efforts to make it easier to register to vote and set a 15-day minimum early voting window that states must meet. It would also make Election Day a federal holiday. 

The legislation would also mandate that each state offer same-day voter registration at all polling locations by 2024, and calls for a broad range of cards and documents to qualify as proof of identification for in-person voting.

“Following the 2020 elections in which more Americans voted than ever before, we have seen unprecedented attacks on our democracy in states across the country,” Klobuchar, chairwoman of the Senate Rules Committee, said on Tuesday.

“These attacks demand an immediate federal response,” she added, noting that  the bill “will set basic national standards to make sure all Americans can cast their ballots in the way that works best for them, regardless of what zip code they live in.” 

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The bill also seeks to target gerrymandering, barring states from drawing political boundaries with that has the “intent has the effect of materially favoring or disfavoring any political party.”

The bill comes after 18 different states this year passed 30 different laws that would make it more difficult to vote, according to an analysis from the Brennan Center for Justice at New York University School of Law. It targets a number of practices enacted in Republican-led states.

Democrats have asserted the wave of voting restrictions is a result of former President Trump‘s repeated claims that widespread voter fraud — which is exceedingly rare in American elections — cost him the November election.

Conversely, Republicans have remained steady in their support for the new state-level bills, arguing that the pieces of legislation bolster election integrity. 

The new bill still faces an uphill battle in the Senate to reach the 60 votes needed to overcome a GOP filibuster, and includes efficiency measures that have been embraced by a number of states as well as some more controversial measures.

The bill would require states to provide automatic voter registration, which typically requires those visiting the Department of Motor Vehicles or another state agency to opt-out of registering to vote. At least 18 states already have such a program.

But the bill also would require states to allow those with felony convictions to vote as soon as they complete their prison terms.

States have a patchwork of limitations on when those with criminal records can vote, with many seeking to limit the franchise until the formerly incarcerated pay off any remaining fines and fees — keeping many away from the ballot box as interest makes it more difficult to pay off the balance.

Such a move could restore voting rights to an estimated 5.2 million of people, according to data from The Sentencing Project. That includes major swing states like Florida, where voters in 2018 approved a referendum to remove voting restrictions on those with a felony record, only for the Republican-led legislature to assert such a right could only be granted after fines and fees were paid.

The bill also goes after another area often targeted in recent bills passed by Republican state legislatures, requiring election officials to maintain ballot drop boxes for those who have requested absentee ballots — leaving the boxes accessible from the day they mail ballots through Election Day. 

It also requires jurisdictions to have one drop box per every 15,000 votes that were cast in the most recent presidential election — a standard designed to target cities that limited the number of available drop boxes or made them difficult to access.

The bill also targets voter roll removal recently seen in states like Indiana and Ohio, limiting states’ ability to remove voters from the rolls due to inactivity or non-response to mailings. 

Pressure on Democrats to protect voting rights has only grown in recent months, following a Supreme Court decision in June that upheld a pair of Arizona voting laws.

Advocates and liberal lawmakers decried the ruling, arguing that it hobbled Section 2 of the Voting Rights Act.

Under the section, states and other jurisdictions are prohibited from implementing voting laws that discriminate against Americans on the basis of race, color or membership in a language minority group.

In addition to the revised bill that was introduced Tuesday, Democrats are also eyeing the Senate passage of the John R. Lewis Voting Rights Advancement Act that was introduced and passed by the House in August before the chamber’s summer recess.

Bearing the name of the late Georgia congressman and voting rights champion John Lewis (D), the legislation would restore and update the federal preclearance process in the Voting Rights Act that was gutted by a 2013 Supreme Court decision. 

Previously, the preclearance required states and localities with histories of racial discrimination to gain approval from the Justice Department before implementing any change to voting procedure.

The Lewis bill changes the formula to a more modern standard, now judging states and municipalities on their voting rights record of the past 25 years.

The legislation is co-sponsored by moderate Manchin, who, along with other moderate Democratic senators is against filibuster reform even for voting rights, as well as Sens. Tim Kaine (Va.), Jon Tester (Mont.) and Raphael Warnock (Ga.).

 

The Brennan Center for Justice: The Briefing

August 17, 2021

This afternoon, Democratic lawmakers stood on consecrated ground — the foot of the Edmund Pettus Bridge in Selma, Alabama.

The members of Congress weren’t there simply to honor the sacrifices of the late civil rights icon John Lewis and the hundreds of other marchers who braved police tear gas and clubs for the right to vote, as they’ve done in the past. They were gathered to announce the introduction of the John R. Lewis Voting Rights Advancement Act (H. R. 4), transformative legislation that would restore the protections of the Voting Rights Act that Lewis fought so hard to enact as a civil rights activist.

In 2013, the Supreme Court’s infamous Shelby County v. Holder decision invalidated the 1965 law’s Section 5 “preclearance” requirements, which prevented jurisdictions with a history of racial discrimination from changing voting rules without permission from the Justice Department or a federal court. In the ruling gutting the landmark civil rights law, Chief Justice John Roberts waved away concerns of new voting restrictions, claiming that “nearly 50 years later, things have changed dramatically.”

Unfortunately, things have changed dramatically — just not how Roberts thought.

The danger of new voting restrictions is no longer theoretical. It’s a grim reality. After record voter turnout in 2020, Republican state legislators around the country have responded by cracking down on the right to vote. Brennan Center research shows that this year, 49 states have introduced over 400 bills with provisions that make it harder to vote, 30 of which have become law in 18 states. Just last month, the Supreme Court’s decision in Brnovich v. Democratic National Committee weakened Section 2 of the Voting Rights Act, degrading citizens’ ability to challenge policies that lead to voting discrimination.

This all paints a bleak picture as the nation’s first redistricting cycle since the Shelby Countydecision looms, potentially redefining the balance of power in Congress and state legislatures for the next decade.

As my colleague Wendy Weiser told Congress yesterday, the bill named for Lewis is an essential step in turning the tide in this war on voting rights. Restoring preclearance and strengthening Section 2 of the original Voting Rights Act would undo much of the damage from the Brnovich and the Shelby Countyrulings.

President Biden has placed his full support behind it, and his Justice Department has told Congress that the bill must be passed so that the federal government can properly protect Americans’ voting rights nationwide as the midterms quickly approach. The legislation would provide a desperately needed bulwark against continuing state voter suppression efforts.

Congress must pass the John R. Lewis Voting Rights Advancement Act without delay.

 

Voting Rights Activists Cling To Hope In ‘Race Against Time’

By Kate Riga 

August 13, 2021 

[Excerpts:]

Republican-led legislatures continue blanketing the states they control in laws that make it harder to vote. Census data has been released, starting the clock on the redistricting process which Republicans disproportionately use for partisan advantage. The midterms creep closer, curtailing the time Democrats have to put voting reforms in place.

And Congress is in recess. 

After Republicans blocked Democrats’ attempt to pass the For the People Act in June, energy and attention around the issue largely stalled. Infrastructure legislation, with a clearer path to becoming law, took precedence.

But a small group of senators including Sens. Manchin, Amy Klobuchar (D-MN) and perhaps the lawmaker with the most pressing personal stake in voting reform, Raphael Warnock (D-GA), have been quietly working to craft a narrower For the People Act behind closed doors. Warnock is up for reelection in 2022 after winning the last two years of former Sen. Johnny Isakson’s (R-GA) term in 2020, and Georgia has already passed one of the most egregious voting overhauls.

Some of the current negotiating involves incorporating Manchin’s alterations and homing in on the crux of the original bill: hobbling partisan gerrymandering, protecting voting rights and addressing the cyclical influx of dark money.

To activists, Manchin’s involvement in the process is key. 

Many activists are looking for a more aggressive messaging campaign from the White House than they’ve seen so far, concerned that Biden has not adequately centered the issue in his public remarks. Leaked comments from White House officials saying they can “out-organize voter suppression” have stoked significant anger. Biden has expressed frustration at the expectation that he get voting rights legislation passed, pointing to Democrats’ achingly slim majorities in both chambers.

 

https://electionlawblog.org/?p=123936

“Democrats Reboot Stalled Election-Law Push”

Derek Muller

August 7, 2021

A couple of details from the Wall Street Journal:

Senate Rules Committee Chairwoman Amy Klobuchar (D., Minn.) met on Thursday with other Democrats including Sen. Joe Manchin (D., W.Va.) to iron out some remaining sticking points.

The Democrats have agreed to narrow the bill, with an emphasis on voting procedures, and scale back their sweeping elections and ethics measure known as the “For the People Act,” which touches on everything from how districts are drawn to how campaigns are financed and how ballots may be cast.

“We’re making good progress,” Sen. Raphael Warnock (D., Ga.), who is involved in negotiations, said on Thursday night. “We still have some distance to go.”

In seeking to find common ground, Democrats have tangled over requirements to show identification when voting. Currently, 36 states have laws requesting or requiring voters to show some form of identification when voting, according to the National Conference of State Legislatures. The “For the People Act,” a version of which passed the House in March, would loosen identification requirements by allowing voters to attest to his or her identity through a signature instead of showing ID.

Many Democrats say voter ID requirements can amount to voter suppression. Republicans argue ID requirements are a safeguard against illegal voting and don’t present an undue hurdle.

Ms. Klobuchar, whose state is one of 14 that doesn’t require an ID at the polls, has pushed for requiring all states to allow signatures instead of voter identification. Mr. Manchin has pushed for a mandate that all states require voter ID, with documentation such as utility bills counting toward the ID requirement. He is calculating that a measure to extend voter ID requirements across the nation would be politically hard for Republicans to resist given their emphasis on ensuring the integrity of elections.

“We’re looking at how we do it and try to accommodate everybody,” Mr. Manchin said Thursday of his talks with Democrats on mandating voter ID requirements.

Manchin ‘can’t imagine’ supporting change to filibuster for voting rights

BY MYCHAEL SCHNELL– 08/01/21

https://thehill.com/homenews/sunday-talk-shows/565825-manchin-cant-imagine-supporting-change-to-filibuster-for-voting

[Excerpt:]

Manchin has previously said he would not vote to change the filibuster, which would stymie Democrats’ chances of moving sweeping voting rights legislation at a time when GOP legislatures in states across the country are imposing tougher election laws that Democrats say will depress the vote of their supporters.

A more narrow voting rights bill named after the late Rep. John Lewis (D-Ga.) will be introduced later this week. That measure, many believe, has a better chance of winning some GOP support than the more sweeping For the People Act blocked by the Senate GOP earlier this year. 

Whether the legislation could get 10 GOP votes to overcome a filibuster, however, is unknown.  

The Democrats’ New Voting-Rights Obstacle

Following the Supreme Court’s recent Arizona decision, voting-rights activists know they have to act fast.

ByRonald Brownstein July 8, 2021

[Excerpts:]
There is a gnawing anxietyamong voting-rights advocates thateven if Democrats find a way to roll back the Senate filibusterand pass new federal legislation safeguarding access to the ballot, the Republican-appointed majority on the Supreme Court might still strike it down.

Last week’s Supreme Court ruling, in which the six Republican-appointed justices outvoted the three appointed by Democratsto uphold two Arizona lawsthat critics called racially discriminatory, has elevated that concern to a new height. It is forcing congressional Democrats and their allies to confront the question of whether it’s possible to “court-proof” their efforts to protect voting rights.

 

There are two federal election bills — the For the People Act and the John Lewis Voting Rights Act — being debated in Congress.

Earlier this week, Senator Joe Manchin III, Democrat of West Virginia, who earlier this month said that he would not support the For the People Act but would support the John Lewis Voting Rights Act, offered his own legislative proposal as a means of getting a voting rights bill before the Congress for serious debate.

 

Opinion: Manchin’s voting rights compromise is great — except it doesn’t take on ‘election subversion’

Opinion by Edward Foley

June 18, 2021 at 9:22 p.m. GMT+2

The compromise on electoral reform proposed this week by Sen. Joe Manchin III (D-W.Va.) is a huge step in the right direction, although it omits some much-needed safeguards for counting ballots.

Senate Minority Leader Mitch McConnell (R-Ky.) is already trying to block Manchin’s proposal, but if Republicans can’t support this reasonable effort at repairing America’s democracy, their good faith is seriously in doubt. And Democrats — including Manchin — will need to consider whether one party alone can restore appropriate two-party competition.

First, the good news. Manchin’s outline contains key components assuring the right to vote. No. 1 on his list is making Election Day a national holiday — a no-brainer, for practical and symbolic reasons.

No. 2 is even better: 15 days of early voting, which give voters an adequate opportunity to get to the polls.

Manchin also assures voters an absentee ballot if they can’t vote in person. But he’s right not to insist that states provide absentee ballots on demand. While no-excuse absentee voting works well where it exists, it should not be the subject of a federal mandate, especially not in the current environment.

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Former president Donald Trump has irresponsibly bred distrust of vote-by-mail, but the most constructive remedy is not to impose it on states whose voters are especially suspicious. Manchin’s compromise strikes the right balance between voting rights and state autonomy. Republicans should embrace, not resist, this sensible approach.

Manchin’s proposal includes other valuable elements, such as automatic voter registration, to facilitate getting eligible citizens on the rolls, and a prohibition on the ugly tactics of using disinformation or intimidation to try to prevent voters from casting ballots.

Especially welcome is the third item on his list: “Ban partisan gerrymandering and use computer models.” While the proposal lacks details, any act of Congress that curtailed the scourge of gerrymandering would be a big boost for democracy; and depending on the methodology employed, computer models can be an excellent means to accomplish this objective.

Federal courts could enforce this computer-based gerrymandering ban, avoiding the need to require new state-administered commissions — a requirement that could thwart GOP support and cause constitutional problems under a line of 10th Amendment precedent known as the “anti-commandeering” doctrine.

Manchin’s proposal is also praiseworthy for items it excludes. No “same day” voter registration. No ballot collection rules that Republicans understandably deride as “ballot harvesting.” Like nationwide no-excuse absentee voting, these elements of S. 1, the For the People Act as drafted by Democrats, are nonstarters for Republicans. Manchin wisely deletes them as an olive branch to GOP senators willing to rebuild America’s shaken system of self-government.

But other pieces of S. 1 that don’t make Manchin’s list deserve to be added. S. 1 has a section that would require voter-verified paper ballots, meaning voters have the opportunity to review an official paper record of their votes no matter what computer technology is employed to cast ballots. That’s an important way to protect the accuracy of ballot-counting, which is increasingly under threat. Another useful section of S. 1 provides grants to states to conduct risk-limiting audits, a recently developed statistical technique for checking the integrity of vote tallies.

The one overarching deficiency in Manchin’s laudable proposal is its lack of attention to the escalating risk of “election subversion,” the term that election-law expert Richard L. Hasen and others use to describe how Trump-inspired Republicans in battleground states are positioning themselves to undermine vote-counting.

The “audit” of the 2020 presidential election results in Arizona by the state GOP — Rep. Liz Cheney (R-Wyo.) notably called it “an effort to subvert democracy” — could become a model for Trump’s acolytes elsewhere to perpetuate his claim that he was robbed of the election. It’s essential that Congress prevent the methods being used in Arizona, involving one party taking possession of ballots in violation of generally accepted chain-of-custody requirements, becoming the means by which state officials try to repudiate results they don’t like in 2022 and 2024.

Congress could guard against this danger by requiring states to satisfy basic chain-of-custody standards. Each house of Congress ultimately has the power under the Constitution to verify vote tallies in elections to that chamber. Therefore, as long as Congress can keep the integrity of ballots intact while they remain in the hands of state officials, Congress can assure an accurate count of those ballots — assuming that Congress itself will count votes honestly.

There is no such chain-of-custody provision on Manchin’s list. But it isn’t in S. 1 either.

Congress can defer this issue to a later bill, but lawmakers won’t be finished safeguarding democracy before the midterms until Manchin can broker a deal on protections for counting, not just casting, votes.

The more Republicans who join Manchin, the better. But the obligation of bipartisanship in electoral reform extends only to the “loyal opposition” — not to an opposition hostile to democracy itself.

Now that Manchin has offered a responsible plan, any unpatriotic refusal of Republicans to participate cannot justify its defeat.

 

John Lewis Voting Rights Advancement Act (“VRAA”)

 

“House Passes a Voting Rights Bill, but a G.O.P. Blockade Awaits in the Senate”

The House voted on Tuesday to restore federal oversight of state election laws under the 1965 Voting Rights Act and expand its reach, as Democrats moved to strengthen a crowning legislative achievement of the civil rights era amid a renewed national fight over access to the ballot box.

The legislation, named after Representative John Lewis of Georgia, the civil rights icon who died last year, is a linchpin of the party’s strategy to combat voting restrictions in Republican-led states. It would reverse two Supreme Court rulings that gutted the statute, reviving the power of the Justice Department to bar some discriminatory election changes from taking effect and easing the path to challenge others in court.

Up against urgent deadlines before next year’s midterm elections, Democrats votedalong party lines to adopt the bill 219 to 212 in a rare August session, just days after it was introduced. But stiff Republican opposition awaits in the Senate, where a likely filibuster threatens to sink it before it can reach President Biden’s desk.

That outcome is becoming familiar this summer, as Democrats on Capitol Hill try to use their party’s control of Congress and the White House to lock in watershed election changes — only to be blocked by their Republican counterparts. In the meantime, more than a dozen G.O.P.-led states have already enacted more than 30 laws this year making it harder to vote.

 

From:“Matt Shuham (TPM)” <mshuham@talkingpointsmemo.com>
Date: August 23, 2021
The Franchise: ‌

Rep. Terri Sewell (D-AL) unveiled the newest version of the John Lewis Voting Rights Advancement Act last week, which has been carefully crafted to address a series of Supreme Court decisions that hacked away at the Voting Rights Act and other means of protecting voting rights.

It would bring back preclearance with a vengeance, and require all 50 states — not just those with histories of racially discriminatory voting practices — to submit certain election practices for federal approval. Those include restrictive laws in areas that are seeing high growth in minority populations.

It would also bar courts from considering whether the law is supposedly useful in fighting fraud in VRA cases — generally the primary cover Republicans cite for restrictive legislation.

The proposal, ultimately a much more robust version of the original bill, would roll back the significant damage the conservative-majority Supreme Court has done to voting rights. Democrats have been collecting data about discriminatory voting practices to shore up the act in the likelihood that it’ll be litigated in court. But there is no guarantee that it’ll even get that far: to become law, the bill will have to get by the filibuster in the Senate, meaning it would have to attract at least 10 Republican votes — a prospect that seems next to impossible. Unless Sens. Kyrsten Sinema (D-AZ) and Joe Manchin (D-WV) agree to at least reform the Senate rule, the bill will be dead on arrival in the upper chamber.

Summary of the VRAA

https://www.leahy.senate.gov/download/john-lewis-voting-rights-advancement-act-one-pager

The John Lewis Voting Rights Advancement Act responds to current conditions in voting today by restoring the full protections of the original, bipartisan Voting Rights Act of 1965, which was last reauthorized by Congress in 2006, but gutted by the Supreme Court in 2013.

  • Following the Shelby County decision seven years ago, several states passed sweeping voter suppression laws that disproportionately prevent minorities, the elderly, and the youth from voting.
  • The bill provides the tools to address these discriminatory practices and seeks to protect all Americans’ right to vote.

The John Lewis Voting Rights Advancement Act creates a new coverage formula that applies to all states and hinges on a finding of repeated voting rights violations in the preceding 25 years.

  • Significantly, the 25-year period “rolls,” or continuously moves, to keep up with “current conditions,” so that only states that have a recent record of racial discrimination in voting are covered.
  • States that have repeated and persistent violations will be covered for a period of 10 years, but if they establish a clean record moving forward, they can come out of coverage.

The John Lewis Voting Rights Advancement Act establishes a targeted process for reviewing voting changes in jurisdictions nationwide, focused on measures that have historically been used to discriminate against voters.

  • The process for reviewing changes in voting is limited to a set of measures, such as the institution of a voter ID law or the reduction of multilingual voting materials – practices that have historically been found to have the greatest discriminatory impact.

The John Lewis Voting Rights Advancement Act also –

  • Allows a federal court to order states or jurisdictions to be covered for results-based violations, where the effect of a particular voting measure (including voter ID laws) is to lead to racial discrimination in voting and to deny citizens their right to vote;
  • Increases transparency by requiring reasonable public notice for voting changes;
  • Allows the Attorney General authority to request federal observers be present anywhere

in the country where there is a serious threat of racial discrimination in voting;

  • Revises and tailors the preliminary injunction standard for voting rights actions to

recognize that there will be cases where there is a need for immediate preliminary relief.

  • Increases accessibility and protections for Native American and Alaska Native voters.

#### #

How is the John Lewis Voting Rights Act different from H.R. 1?

June 8, 2021 at 8:51 p.m. GMT+2

Democrats see a national voting overhaul as a key part of their policy agenda, an urgent issue that they say requires legislative intervention as GOP-controlled state legislatures across the country work to pass — or already have passed — restrictive new voting and election laws.

But the prospect of passing any kind of sweeping legislation took a hit over the weekend when Sen. Joe Manchin III (D-W.Va.) said he opposes Democrats’ flagship voting bill, the For the People Act.

Writing in the Charleston Gazette-Mail, Manchin said the For the People act is too “partisan,” arguing that “congressional action on federal voting rights legislation must be the result of both Democrats and Republicans coming together to find a pathway forward.”

But Biden and other Democrats say they simply want to protect voting rights that Republicans are fighting hard to restrict at the state level; several GOP-controlled states have already passed new voting restrictions, while dozens of others are in the process of considering new laws that would limit ballot access, increase voter ID requirements or otherwise make it more difficult to vote.

Democrats had focused on the For the People Act, a broad and transformative bill that would have, among other things, created a national automatic system for registering voters and established national standards for mail-in and absentee ballots. It’s hard to overstate what a big deal those measures would have been; there’s a reason it was labeled House Resolution 1 in this Congress, a sign that it was the Democrats’ top priority. A national voter registration system would have pulled voters’ information from preexisting government databases, like state driver’s license databases and taxpayer information. Anyone could opt out of being automatically registered to vote — but barring that, every American would be automatically registered.

Democrats never looked likely to get the 60 votes required to move forward on it in the Senate, but they wanted to put it to a vote, and they wanted to get all 50 Democrats in the chamber to vote for it. Manchin scuppered those plans with his op-ed, and his consistent opposition to changing Senate filibuster rules means little of the Democrats’ agenda appears within reach.

Manchin did say, though, that he will support the John Lewis Voting Rights Act, named after the Democratic congressman who died in 2020 after representing Georgia’s 5th District for more than three decades.

The John Lewis Voting Rights Act is a much different bill, and it isn’t fair to describe it as a substitute for the For the People Act. But Democrats are still pushing to move it forward in Congress; it hasn’t yet been brought up in the House in this Congress (though an earlier version of the bill passed in 2019 before failing in the Senate committee process).

Here’s what it would do:

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  • Create a pathway for citizens or the federal government to challenge new voter laws in the courts, particularly if parties can show the new law infringes on minority voting rights.
  • Require public notice for any changes made to voting laws in a state or political subdivision.
  • Provide new rules for polling places on Indian reservations that require states to pay for polling places at no cost to tribes.
  • Require many categories of changes in state or local election procedures to go through a process called “preclearance” — essentially, approval from the Justice Department’s civil rights division — before being implemented.

The last bullet point is the most important and contentious one. The bill would require changes to a whole lot of different kinds of laws and voting procedures to be subject to federal preclearance, including:

  • Changes to the number of at-large elected positions within a state or subdivision.
  • Voter ID requirements.
  • Alterations to multilingual voting materials.
  • Changes to precinct locations or early-voting access.
  • Changes to how voter rolls are purged.

Opponents say that gives the federal government way too much control over approving state and local election laws. Preclearance was actually part of the law in the past but was struck down by the Supreme Court in 2013, in large part because it applied only to certain states (Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, plus a few individual counties in California, Florida, New York, North Carolina and South Dakota, and two townships in Michigan). The court essentially said Congress hadn’t taken the country’s racial progress since the 1960s into account in monitoring just those jurisdictions.

Those jurisdictions were part of the original 1965 Voting Rights Act, largely because of the history of discrimination in those places. Democrats, including Manchin, now say the most direct solution to that problem is to require preclearance in all jurisdictions, in all 50 states.

But Republicans are vocally opposed to the John Lewis Voting Rights Act, just as they are to the For the People Act. Sen. John Cornyn (R-Tex.) said the point of both bills is to “get the federal government basically to manage the voting system,” and others have said they oppose it.

That probably means it’s headed nowhere in the Senate and won’t become law. But if it has the support of all 50 Democratic senators, it could at least get as far as a vote, which would put Republicans on the record as being against it.

But Manchin still won’t budge on the filibuster. And that’s bad news for Democrats’ efforts to protect voting rights — and the rest of their agenda, too.

Peter W. Stevenson writes The 5-Minute Fix newsletter and covers national and state politics for The Fix. He’s been at The Post since 2015 and has been the senior political video producer since 2017. He was part of a team that won a Pulitzer Prize for climate change coverage in 2020, and won two Edward R. Murrow awards in 2017. Twitter

 

The For the People Act of 2021 117th Congress (2021-2022) |

 

Briefing, Brennan Center for Justice

By Michael Waldman

June 24, 2021

Last night, the For the People Act had its first test in the Senate. It was not, of course, a vote on the bill itself. In the intricate quadrille of Senate procedure, it was a vote on whether to allow a debate to start. Fifty senators, all Democrats, voted to proceed, not enough to break the Republican logjam.
This was a big deal — a significant and positive development.
The Democrats were unified in voting to move the bill forward and start the process of legislating. That 50-vote tally, of course, included Sen. Joe Manchin of West Virginia. He had previously said he would oppose S. 1. In recent days, he put forward a substitute plan. The Brennan Center and others who are fighting for reform were unanimous in our response: it was a breakthrough moment — with Democrats united in recognizing the intensifying threats facing our democracy and the urgent need to address them.
Manchin’s plan includes protections for early voting, automatic voter registration, making Election Day a holiday, provisions to expose dark money in politics, and a ban on partisan gerrymandering. To be clear, there are key reforms not included, reforms passed by the House and backed by all the other Democrats, including small donor financing of campaigns. Now even more intense negotiations and legislative activity should start.
I have a special plea to everyone following this landmark legislation: ignore the headlines and pundits who declare the For the People Act dead on arrival. It’s the 2021 equivalent of “Democrats in Disarray.” It has passed the House. It has the ardent support of the White House. (Earlier today, I and other voting rights group leaders met, via Zoom, with Vice President Harris to map strategy.) It is wildly popular with the public. And now it is on the floor of the Senate.
This bill has momentum, even given the stop-and-start, dead-then-alive way that major legislation moves. The real question is: Why are Republican senators so determined to block the most important and necessary voting rights bill in a generation?
To that question, we should all demand answers over the coming weeks of congressional recess.

 

Analysis: May 11, 2021

“Here’s what H.R. 1, the House-passed voting rights bill, actually contains:

A set of national voter registration and mail-in voting standards:H.R. 1 requires the chief election official in each state — the secretary of state in most — to establish an automatic voter-registration system that gathers individuals’ information from government databases and registers them unless they intentionally opt out.

And it says it’s the government’s responsibility to keep that information up to date, based on information from agencies such as state motor vehicle administrations, agencies that receive money from Social Security or the Affordable Care Act, the justice system and federal agencies, including the Department of Veterans Affairs, the Defense Department, the Social Security Administration and others.

The law also would guarantee voters same-day registration either at early-voting sites or at precincts on Election Day. Each state would be required to allow at least 15 days of early voting for federal elections, for at least 10 hours a day with at least some time before 9 a.m. and after 5 p.m. The law would limit how states can purge voter rolls.

Nonpartisan redistricting commissions:In an attempt to get rid of gerrymandering, the law would require each state to use independent commissions (not made up of lawmakers) to approve newly drawn congressional districts. The commissions would each include five Democrats, five Republicans and five independents, requiring bipartisan approval for districts to be allowed.

“Regardless of whether it’s a red state or a blue state, we are seeing significant manipulation in the legislative redrawing of districts,” said Tom Lopach, chief executive of the nonpartisan Voter Participation Center, which has advocated for the bill. “H.R. 1 presents an opportunity for everyone to get onboard with independent, unbiased and balanced redistricting that frankly is good government.”

It would also give the public a new level of scrutiny, and a chance to object to poorly drawn districts. The law would require a public comment period and give citizens a legal basis to challenge gerrymandering. (Currently, gerrymandering challenges have to be made on constitutional grounds, and if a law were passed, there would be a clearer argument to present in court against gerrymandered districts.)

Big changes in campaign finance law: H.R. 1 would require super PACs and “dark money” groups to disclose their donors publicly, a step Democrats say would eliminate one of the most opaque parts of the U.S. election process. It would establish a public funding match for small-dollar donations, financed by a fee on corporations and banks paying civil or criminal penalties.

It would also require Facebook and Twitter to publicly report the source and amount of money spent on political ads.

New ethics rules for public servants: The bill would create the first ethics code for Supreme Court justices, to be created within a year of the bill’s passage.

It would also stop a much-debated practice in Congress: When a member of Congress settles a sexual harassment or discrimination lawsuit, in certain cases they can use taxpayer money to settle. H.R. 1 would prevent taxpayer money from being used for such settlements.

The bill also would create more oversight on lobbyists and foreign agents.

A requirement that presidential candidates disclose their tax returns:This one is a little more relevant to recent events. Democrats have been frustrated for years that Trump never released his tax returns, and H.R. 1 would require it by law.

Can it pass in the Senate?

Senate Democrats plan to move the bill forward, but Republicans in the chamber have been very public with their pledge to fight it forcefully. A similar House bill was passed in 2019, and then-Majority Leader Mitch McConnell (R-Ky.) refused to bring it to the Senate floor for a vote.

Senate Majority Leader Charles E. Schumer (D-N.Y.) has promised to end what he called McConnell’s “legislative graveyard,” and bring more bills passed by the House to the floor to force votes. But if they want it to pass, Democrats don’t have a lot of options. Bringing the bill to the Senate Rules Committee is a step that forces committee Republicans on the record as being for, or more likely against it, and a full Senate vote could do the same — but that isn’t the kind of political pressure that seems likely to get Democrats to the 60 votes they’d need to send the bill to President Biden’s desk.

Unlike the coronavirus relief package Democrats passed in March, for which Schumer needed only 50 votes plus Vice President Harris’s tiebreaker, H.R. 1 isn’t being passed through the special reconciliation process that requires a simple majority.

Democrats’ other option is to eliminate part or all of the legislative filibuster — a political bombshell that would allow them to pass much more legislation with just 50 votes and Harris’s tiebreaker.

Even if they do pass it, it would probably come up against lawsuits. The conservative Heritage Foundation has called many of the bill’s provisions unconstitutional, and given how opposed congressional Republicans are to it, legal challenges seem inevitable.”

 

Senate to vote on sweeping voting rights bill

Republicans promise to filibuster

Oct. 18, 2021

 

This afternoon, Senate Republicans blocked a discussion of the Freedom to Vote Act. The measure is the compromise bill put together by seven Democrats and one Independent after Senator Joe Manchin (D-WV) said he could not support the more sweeping For the People Act passed by the House of Representatives. Manchin maintained that a carefully crafted bill could attract the ten Republican senators it needed to break a filibuster. 

The Freedom to Vote Act would provide for automatic and same-day voter registration, and it would limit the culling of voters off voter rolls. It would provide for two weeks of early voting and allow anyone to vote by mail. It would make Election Day a holiday and make sure that there is a paper trail for ballots.

At the state level, it would start the process of rolling back the legislation passed by 19 Republican-dominated state legislatures to skew elections hard in their favor. It would prohibit partisan gerrymandering, require transparency in advertising, and protect election officials from the attacks they’ve endured since the 2020 presidential election. It would rebuild the Federal Election Commission (FEC), which oversees our election process but which was gutted under former president Trump. 

These reforms are nonpartisan and are an attempt to push back against highly partisan state laws that voting rights experts say will essentially allow Republicans to declare their own outcomes for elections.

Today all Republicans voted no even to a discussion of the bill. All Democrats voted yes, but Majority Leader Chuck Schumer (D-NY) switched his vote to a no so that, as a member of the majority, he could bring the measure back up later. 

 

Biden’s Longtime Defense of Senate Rules Withers Under Partisan Rancor

The president left no doubt that he has reached a breaking point, lashing out at senators who are blocking voting rights legislation.

Jan. 11, 2022

 

“How the Voting Rights Bills Miss the Target on Election Subversion”

[Excerpt:]

Nate Cohn criticizes the FTVA and the JLVRAA (now merged into a new megabill) for not thwarting election subversion. However, the megabill does now include a substantial number of anti-subversion provisions. And while it doesn’t reform the Electoral Count Act, there are other efforts afoot to do just that. If the megabill is somehow able to pass, it’ll be much easier to fit ECA amendments through the same opening (though see Ned’s post about why ECA amendments might be more effective if done on a bipartisan basis).

 

House Democrats passed a pair of voting-rights bills on Thursday morning, setting up a showdown in the US Senate over the legislation — and the Senate’s own rules.

The Business Insider

January 13, 2022

Three previous voting-rights and democracy-reform bills that Democrats advanced in 2021 failed to even get a debate in the US Senate because of the filibuster rules. But this time around, congressional Democrats are deploying some unique procedural tactics to fast-track consideration of the bills in the Senate and ensure they get a debate on the Senate floor.

House Democrats voted along party lines to concur with an amendment to attach the two voting-rights bills to the text of an unrelated NASA bill. They intend to send it as a “message” to the upper chamber.

The new bill attached to the NASA measure, named the Freedom to Vote: John R. Lewis Act, combines two pieces of major voting-rights legislation: the Freedom to Vote Act, a sweeping voting-rights and democracy-reform bill, and the John Lewis Voting Rights Advancement Act, a bill that would refortify key parts of the Voting Rights Act that have been struck down or weakened by federal courts.

Under the Senate filibuster rules, most legislation requires 60 votes to even proceed to a debate. But because the NASA legislation has already been considered by both chambers, the voting-rights amendment is being sent as a message. Therefore it only requires a simple majority of 51 votes to advance to debate in the Senate.

But after the debate, the legislation itself would still require 60 votes to pass — an unlikely outcome in a Senate divided between 50 Democrats and 50 Republicans. All 50 Senate Republicans voted to block debate on the Freedom to Vote Act in October, and only one Republican, Sen. Lisa Murkowski of Alaska, moved to proceed to debate on the John Lewis bill.

If Senate Republicans block the legislation itself, as expected, Senate Majority Leader Chuck Schumer said he would force a vote on changes to the Senate’s rules.

Democrats are discussing reforms to the Senate filibuster, including a special carve-out to allow the chamber to pass voting-rights legislation with a simple majority, returning to the talking filibuster, and putting the burden on the minority party to hold a filibuster on the Senate floor rather than placing the onus on the majority to break the filibuster.

But the entire caucus is still a ways off from coming to an agreement.

“I wish we were closer,” Sen. Jon Tester, a Montana Democrat, told reporters on Wednesday. “We’re not at the point where we’re ready for prime time.”

Two swing Democrats, in particular, Sen. Joe Manchin of West Virginia and Sen. Kyrsten Sinema of Arizona, have consistently opposed a carve-out. Manchin is also skeptical of making changes to the Senate’s rules solely along party lines.

President Joe Biden, who endorsed changing the filibuster rules in a Tuesday speech in Atlanta, is set to attend Democrats’ weekly caucus meeting on Thursday. But it’s unclear whether he’ll be able to sway the holdouts or bring the caucus any closer to a consensus.

Read the original article on Business Insider

 

Sinema and Manchin confirm opposition to eliminating filibuster, probably dooming Democrats’ voting rights push

January 13, 2022

 

What Democrats put in their voting rights mega bill — and what got left out

The massive legislative package would make massive changes to how people vote as well as redistricting and campaign finance.

01/14/2022 

 

Democrats Face a Dilemma on Voting: Compromise or Keep Pressing?

With their broad voting rights push nearing a dead end, Democrats must soon decide whether to embrace a far narrower bipartisan effort to protect vote counting and administration.

Jan. 14, 2022

 

Democrats brace for likely defeat of voting rights push due to GOP filibuster

January 19, 2021

[Excerpt:]

“Isn’t protecting voting rights and preventing their diminution more important than a rule in the Senate that has not always been in existence and was not envisioned by the founders?” he said. “That is the question we should ask ourselves.”

Republicans, meanwhile, have shown little hesitation in continuing their opposition to the Democratic voting legislation, which combines an effort to restore portions of the 1965 Voting Rights Act that have been struck down in recent years by the Supreme Court with a broader effort to establish new national standards for federal elections, including minimum requirements for early voting, vote by mail, and other election conveniences that have been limited in some states by the GOP legislatures.

 

Effort to overhaul archaic election law wins new momentum

BY JORDAIN CARNEY – 01/21/22 

Multiple groups on Capitol Hill are working on reforms to the Electoral Count Act, which lays out how the Electoral College results are counted. And in a rare area of overlap, GOP leaders in both chambers and President Biden are opening the door to changes to the 1887 law. 

Though talks on the law have been quietly happening behind the scenes on Capitol Hill for weeks, they are moving to the forefront as lawmakers try to figure out what, if anything, can be done in the election space after a separate, Democratic attempt to pass a sweeping voting rights bill unraveled. 

 

Democracy is always on the Ballot 

 

https://thehill.com/opinion/campaign/3731618-abandoned-trumps-election-denialism-meets-2022-electoral-reality/

 

Here are some of the main falsehoods and rumors that have spread on social media in the lead-up to Election Day.

https://www.nytimes.com/2022/11/02/technology/midterm-elections-falsehoods.html?smid=nytcore-ios-share&referringSource=articleShare

Voting-related falsehoods and rumors are flourishing across social media in the final stretch before Election Day on Tuesday.

Much of the misinformation and conspiracy theories, which are swirling on Facebook, Twitter and other platforms, build on familiar and unsubstantiated narratives spread about the 2020 presidential election. They include debunked claims of meddling with voting equipment, falsehoods about fraudulent ballots, alleged malfeasance by elections officials and unsubstantiated rumors about mail-in voting.

Many of the posts are outright falsehoods, while others appear intended to simply raise doubts and undermine confidence in voting, researchers said. And they are spreading through more conduits, such as the fast-rising video app TikTok and right-wing social media sites like Truth Social, Rumble and Telegram, according to the data research firms Zignal and Graphika and researchers.

“People are primed, much more mobilized and more soaked in conspiracy theories,” said Mike Caulfield, a research scientist who studies election misinformation at the University of Washington’s Center for an Informed Public.

Here are some of the most widespread falsehoods and rumors related to voting.

President Donald J. Trump and his allies falsely claimed in 2020 that ballot-tabulating machines had changed votes for him to votes for Joseph R. Biden Jr. They claimed the voting machines were connected to the internet, allowing corrupt election officials and outsiders to tamper with the equipment.

While voting machines sometimes encounter programming errors, they are rare, and the equipment is tested before and after Election Day, election officials said. For example, in Maricopa County, Ariz., a political battleground and focal point of conspiracy theorists around the 2020 election, four independent auditors check the security of the equipment, which does not connect to the internet.

Even so, falsehoods about the machines have picked up online in recent weeks.

On Twitter, “voting machines” has been a top voting-related narrative related to the midterm elections, with more than 89,888 mentions in October, nearly double the 49,765 mentions during the same month in 2021 but down from 191,391 in October before the midterm elections in 2018, according to Zignal.

Last month, a Wisconsin state representative said voting machines in the state were connected to the internet. Equipment makers and security experts refuted the claim, but Mr. Trump seized on the falsehood and posted the Wisconsin official’s statement on his social media site, Truth Social.

“Rigged Election, what a mess,” he wrote. The post was shared more than 5,000 times and liked more than 13,000 times.

Mike Lindell, the chief executive of MyPillow and a Trump supporter, was featured last week in several interviews on the video-sharing site Rumble saying that voting machines were connected to the internet and had been tampered with to steal elections. One of his interviews on Rumble was viewed more than 20,000 times.

Over the past month, there were more than 365,592 mentions of “voter fraud” on Twitter, up 25 percent from October 2018, according to Zignal.Claims of voter fraud have often centered on ballot drop boxes. One false theory involves Democrats paying people to stuff the boxes with illegal ballots. The idea was stoked by the May release of the film “2000 Mules,” which asserted with little evidence that illegal drop box stuffing could be traced through cellphone location data. Security experts and former Attorney General William P. Barr have refuted the claims.Last month, Melody Jennings, a Trump supporter and the founder of CleanElectionsUSA, an activist group that has spread unfounded rumors of illegal drop-box stuffing, warned on Truth Social that “mules” — or people who were allegedly vote-trafficking — were “doing their thing” at drop boxes in Maricopa County. She and other conspiracy theorists falsely said these mules had stuffed boxes with illegal ballots and called for volunteers to watch over the boxes. Her post was shared more than 3,000 times and liked 7,400 times.

Conspiracy theories about the handling of ballots by election officials are also circulating on social media. According to one unsubstantiated theory, election officials are purposely confusing voters over the kinds of pens that can be used to mark ballots — and declaring that ballots marked with Sharpie pens aren’t counted.Those false claims, which have circulated since 2020, resurfaced in July when a Maricopa County election office sent an advisory suggesting that voters use felt-tip pens on their ballots. The advisory created a backlash online, with several voters posting on Twitter and Facebook that they would instead use blue ballpoint pens because they worried that ballots marked with felt-tip pens provided at polling stations would not be counted.

False rumors of voting by dead people and illegal immigrants have long circulated, including after the 2020 election in states such as Arizona, Virginia, Nevada, Pennsylvania, Michigan and Georgia. In all of these states, a small fraction of ballots were cast in the names of dead individuals.

The trope has reared its head again online ahead of the midterms.

Politicians including Representative Matt Gaetz, Republican of Florida, have recently said without evidence that Democrats want immigrants who are in the United States illegally to vote.

“Any illegal alien who attempts to vote in our elections should be arrested and deported,” Mr. Gaetz tweeted on Sunday. His post was shared more than 7,000 times and liked more than 48,000 times.

Last week, Texas Scorecard, a self-described citizen journalism group, posted a video on YouTube claiming without evidence that Beto O’Rourke, the Democratic candidate for governor in Texas, had sent pre-filled voter registration applications to dead people. Texas officials validate all voter registration applications. The video was viewed 5,000 times.

Voting by mail isn’t untrustworthy.

Some Republican candidates and voters are using social media to cast doubt on whether ballots sent by mail or submitted into drop boxes are counted. “Mail-in voting” and “mail-in ballots” have been mentioned over 338,528 times in the past month on Twitter, up from 137,507 in the October 2021 and 114,159 in October 2018, according to Zignal.

Conspiracy theorists also seized on a story last month of the burning of a mail truck that was allegedly carrying ballots in Georgia. Images of the burning truck were spread across social media as a sign of cheating in the election, even though an election official later said there were no ballots on the truck.

Social media users have used such incidents to warn against mail-in voting. The hashtag #GetOutAndVoteInPerson has spread widely on Telegram from communities with pro-Trump, Christian, military and election conspiracy theory leanings, said Kyle Weiss, a researcher at Graphika.

Voting by mail has taken place for more than 150 years, and fraud is extremely rare, according to the Brennan Center, a nonprofit voter rights organization. In rural areas and for low-income and disabled voters, voting by mail is often the only option. Rules for mail-in voting and the use of drop boxes vary by state

Official results for many races on Tuesday won’t be announced that night and may not be for days because the counting of votes could take longer. Some social media users are focusing on potential counting delays to raise suspicions of election irregularities, state officials and voting experts said.

Last Thursday, Senator Ted Cruz, Republican of Texas, responded to a news report that Pennsylvania’s top elections official expected official vote counting to take days. “Why is it only Democrat blue cities that take ‘days’ to count their votes?” he tweeted. “The rest of the country manages to get it done on election night.” The tweet was shared more than 5,500 times and liked 19,200 times.

Tallying a final count typically takes days in some states because of the many mail-in votes. In Pennsylvania, officials can begin counting mail-in ballots only on Tuesday morning. In Arizona, election officials said the count could take more than a week because a bipartisan processing board had to certify mail-in ballot signatures. If any ballots are questioned, the law allows five days for the ballot to be reviewed and tallied.

The 2022 midterms are the most important of my lifetime

[Excerpts:]

The Republicans who pledge to ensure that nothing like the 2020 election ever happens again are serious. Their bloviation about ensuring “election integrity” in the future is a front for a more sinister agenda. The increasingly far-right Heritage Foundation has compiled a database going back to 1982, and in all the local, state and national elections over those 40 years can document only 1,384 “proven instances of voter fraud,” many of them individual acts. This supposed threat is the excuse for disenfranchising millions of Americans, whether by keeping them from the polls or delegitimizing the votes they do manage to cast.

The rhetoric of election denial is pure demagoguery, but with real-world menace. In at least two swing states — Arizona and Nevada — true-believer Republican candidates who deny Joe Biden’s victory over Donald Trump have a good chance of being elected secretary of state, putting them in charge of elections. If they win and the 2024 results are not to their liking, they may simply not accept them.

Trump’s acolytes do have a choice, if not courage or decency. Shame on them for undermining the nation’s faith in the democratic process for personal gain. Vital issues are at stake on Election Day. Abortion rights are gravely threatened after the Supreme Court’s decision overturning Roe v. Wade. Voting rights, especially for minorities, are imperiled. Efforts to fight climate change and make the transition to a clean-energy economy would at least be slowed if Republicans took either the House or the Senate.

But the overarching issue is what President Biden calls the fight for “the soul of this nation.” Do we continue our halting but undeniable progress toward making the Constitution’s guarantees of rights and freedoms apply to all Americans? Or do we reverse course?

I hope you care about the answer. And I hope you vote.

 

Democrats see the once unthinkable: A narrow path to keeping the House

While Democrats acknowledge they still face major hurdles, there has been an unmistakable mood shift, according to interviews with candidates, strategists and officials

https://www.washingtonpost.com/politics/2022/08/27/democrats-republicans-house-midterms/

 

MIDTERM ELECTIONS 2022

How Trump’s Endorsements Elevate Election Lies and Inflate His Political Power

The former president’s 220 endorsements have been guided more by self-serving impulses than by unseating Democrats.

[Excerpt:]

The unifying thread through the majority of Mr. Trump’s endorsements has been a candidate’s willingness to help him spread the lie that he won the 2020 presidential race. Many of these candidates either took concrete actions to subvert the election, such as voting in Congress or state legislatures to delay certification of the vote, suing to overturn results or backing partisan reviews of the ballot count. Others made clear public statements in political ads, social media posts or on the campaign trail that expressed doubts about the 2020 election. [Boldface added]

 

DeSantis stokes culture wars as 2024 profile grows

[Excerpt:]

A Harvard CAPS-Harris poll released this week found that, without Trump on the ballot, DeSantis would lead his closest rival, former Vice President Mike Pence, by a 15-point margin.

“I do think that voters are going to have a hard time choosing between Donald Trump and Ron DeSantis because they are so similar in what they offer,” Schilling said. “I don’t think there is a DeSantis without Donald Trump opening that huge door for him . . . .” 

The Youth Voting Rights Act Would Transform Access for Young Voters

In this op-ed, a lawyer who helped write the Youth Voting Rights Act explains why it’s so crucial.

https://www.teenvogue.com/story/youth-voting-rights-act-what-is

The Youth Voting Rights Act, introduced this month by Senator Elizabeth Warren (D-MA) and Representative Nikema Williams (D-GA):

1) establishes a national standard of review for 26th Amendment legal challenges;

2) expands voter registration services at public colleges and universities;

3) allows young people in every state to preregister to vote before turning 18;

4) requires institutions of higher education to have on-campus polling places, with waivers available as appropriate;

5) codifies the right to vote from a college address;

6) guarantees that states accept student IDs to meet voter-identification requirements;

7) creates a grant program that supports youth involvement in elections, including paid fellowships for young people to work with state and local election administrators to engage their peers; and

8) gathers data on registration and voting based on age and race.

 

Trump Meets His New Brain Trust

Allies of the former president are planning for his possible return to office.

https://www.theatlantic.com/newsletters/archive/2022/07/trump-meets-his-new-brain-trust

This is an edition of The Atlantic Daily, a newsletter that guides you through the biggest stories of the day, helps you discover new ideas, and recommends the best in culture. Sign up for it here.

Donald Trump returned to Washington, D.C., for the first time since leaving office in a show of support for the organization trying to make MAGA more than just vibes.

By now you probably know that Donald Trump came back to Washington, D.C., yesterday for the first time in more than a year, and, in a speech that I attended, offered a little taste of what he’d do with a second chance at power. (Hint: It seems pretty sinister!) But maybe just as important as what the former president said is where he said it.

Trump spoke at the first annual summit of the America First Policy Institute, an organization launched by former administration staffers and allies of his who are now working to translate Trump’s whole schtick into a policy framework. You can think of AFPI as a kind of MAGA think tank, or a grown-up Turning Point USA. And understanding this group matters, because if Trump—or, frankly, any other MAGA-style Republican—runs in 2024, he will have something that didn’t exist before: a bank of advisers prepared to back up his rants and grievances with actual legislative proposals. The institute “is going to do for the next few years what the Heritage Foundation did in 1979, 1980” for Republican politics, former House Speaker Newt Gingrich told the audience: provide a set of rules and guidelines to help the party achieve electoral success. (Never mind that the magic of Trumpism has always seemed to be that it never adhered to rules at all.)

The two-day summit can best be described as an elevated Trump rally—a Trump rally for the swamp-dwelling elite, if you will. Instead of a fairgrounds or concert venue, it was held in the basement ballroom of a Washington, D.C., Marriott. Instead of burgers and fries sold from food trucks, mini croissants and bottles of Perrier were on offer. And where country music or classic rock might have been blasting over the sound system, the event hosts played soft and slightly grating Muzak between panelists.

The America First agenda was helpfully outlined on glossy paper and passed around to attendees, listing panels like: “Make the Greatest Economy in the World Work for All Americans”; “Give Parents More Control Over Their Children’s Education”; and “Finish the Wall, End Human Trafficking, and Defeat the Drug Cartels.” Speakers included state and local leaders, as well as Minority Leader Kevin McCarthy and Senators Ted Cruz, Rick Scott, and Steve Daines. During panel discussions, I sat between reporters from The Epoch Times, Breitbart, and something called American Liberty News.

The AFPI isn’t the only organization formulating the intellectual underpinnings for Trumpism. The Claremont Institute has worked on this, and so has American Greatness magazine. But all of these “America First” efforts boil down to three broad pillars, William Galston, a senior fellow at the nonpartisan research group the Brookings Institution, told me. First is a reexamination of America’s international deals and commitments through a transactional, what’s-in-it-for-us lens. The second is the development of an economic agenda that appeals to working-class voters who’ve recently joined the party’s ranks—without necessarily resorting to big-government solutions. The third “is a vigorous, deep, no-holds-barred waging of the culture wars,” Galston said.

Still, despite the panel titles and a few strange guests (“Stop the Steal” candidates Mark Finchem and Kristina Karamo; hosts from the delusional Right Side Broadcasting Network), the event itself was stuffy and occasionally boring, like any other D.C. political conference. It failed to capture the freewheeling, wild energy of a Trump rally—the vibes that made Trump so successful. Even Trump sounded sleepy when he started to speak yesterday, reading his 2024 policy plans off a teleprompter. After all, policy specifics have never really been his thing.

It wasn’t until he went off script with a few jokes about transgender athletes that Trump really seemed to get animated. Then, toward the end, he repeated a familiar refrain to his biggest applause of the night—a refrain that apparently works at rural rallies and D.C.-swamp events alike. “I ran for president; I won. Then I won a second time,” he said. “Did much better the second time; did a lot better.”

2020 Election Deniers Organize to Challenge Votes in 2022

The effort by Trump advisers and January 6 supporters is an extraordinary investment in sustaining and bolstering the false narrative of widespread voter fraud.

July 25, 2022
As part of ongoing efforts to push a false narrative of widespread voter fraud, Trump allies and others connected to the January 6 insurrection are coordinating a nationwide campaign to give election deniers more control over local election administration. They are recruiting an “army of patriots,” according to organizers, to serve as poll watchers and election workers. But that’s not all. They’re also equipping them with combative but vague instructions to fight fake voter fraud threats and create chaos. Unless officials, civic groups, and the media take action to safeguard election processes and curb misinformation, this partisan army could wreak havoc on our elections in 2022 and beyond.

 

Understand the 2022 Midterm Elections

[Excerpt:]

Why are these midterm races so important? This year’s races could tip the balance of power in Congress to Republicans, hobbling President Biden’s agenda for the second half of his term. They will also test former President Donald J. Trump’s role as a G.O.P. kingmaker. Here’s what to know:

What are the midterm elections? Midterms take place two years after a presidential election, at the midpoint of a presidential term — hence the name. This year, a lot of seats are up for grabs, including all 435 House seats, 35 of the 100 Senate seats and 36 of 50 governorships.

What do the midterms mean for Biden? With slim majorities in Congress, Democrats have struggled to pass Mr. Biden’s agenda. Republican control of the House or Senate would make the president’s legislative goals a near-impossibility.

What are the races to watch? Only a handful of seats will determine if Democrats maintain control of the House over Republicans, and a single state could shift power in the 50-50 Senate. Here are 10 races to watch in the House and Senate, as well as several key governor’s contests

 

Election fraud claims from 2020 are widespread on talk radio, contributing to the belief that the midterm results cannot be trusted.

Stuart Thompson writes about online information flows.

 

Trump’s vulnerabilities for 2024 mount after new testimony

July 1, 2022

 

Donald Trump has accelerated his campaign planning, hoping a White House bid will blunt a series of damaging revelations. Some Republicans are worried.

 

Conspiracy crossroads

Former President Donald Trump’s election lies are finding both refuge and rebuke in an increasingly fractured political landscape.

It’s a dizzying reality playing out in split-screen fashion as the House select committee investigating the January 6, 2021, insurrection warns of the dangers tied to voter fraud lies while election deniers capture political nominations across the country.

Take Cassidy Hutchinson’s testimony on Tuesday before the committee investigating the US Capitol attack. The aide to then-White House chief of staff Mark Meadows offered an explosive look at the lead up to the insurrection and the role that election lies played in the violence:

Trump allegedly lunged at Secret Service agents following Ellipse speech. Hutchinson testified that a White House official, Tony Ornato, recounted Trump screaming, “I’m the f**ing President. Take me up to the Capitol now,” following his speech on January 6. Trump then “reached up toward the front of the vehicle to grab at the steering wheel,” Hutchinson remembered learning.

She added that, according to Ornato, Trump used his other hand to “lunge” at Robert Engel, who was the Secret Service agent in charge that day.

Apathy about supporters with weapons. “I overheard the President say something to the effect of, ‘I don’t f**king care that they have weapons. They’re not here to hurt me,'” Hutchinson said in previously taped testimony aired on Tuesday. She said she heard Trump call for metal detectors to be removed.

“Take the f**king mags away. Let my people in, they can march to the Capitol from here. Let the people in, take the F-ing mags away.”

The White House anticipated chaos. On January 2, 2021, Hutchinson said that Meadows “was scrolling through his phone; I remember leaning against the doorway and saying, ‘I just had an interesting conversation with Rudy, Mark. It sounds like we’re going to go to the Capitol.’ He didn’t look up from his phone and said something to the effect of, ‘There’s a lot going on, Cass, but I don’t know, things might get real, real bad on January 6.'”

She added: “That evening was the first moment that I remember feeling scared and nervous for what could happen on January 6.”

Days before the riot, Rudy Giuliani previewed plans. “Cass, are you excited for the 6th? It’s going to be a great day. … We’re going to the Capitol. It’s going to be great. The President is going to be there, it’s going to look powerful,”Giuliani said, according to Hutchinson.

 

Now, consider the 2022 primaries to this point

In state after state, Republican candidates are advancing to general elections with campaigns anchored in election lies. Should enough of them win in November, the GOP will be in a far better position to attack the results of the 2024 presidential election if it doesn’t go their way. What’s even more troublesome is that some of these Republicans are running to be the chief elections administers in their states, potentially giving them great oversight of the 2024 election.

Just this month, for example, Republican Jim Marchant, who has said he would not have certified Joe Biden’s victory in his state, won his party’s nomination for secretary of state in Nevada, a key presidential battleground.

In Texas, the state Republican Party adopted a resolution that rejects Biden as the winner of the 2020 election. And in New Mexico, a Republican-led county commission earlier this month refused to certify the results of the June 7 primary election in the county, citing concern about Dominion voting machines and questions about a handful of individual votes in this month’s primary. (The majority of the commission has since voted to certify the results, ending a standoff with state officials after the Democratic secretary of state had sought a state Supreme Court order to force the certification.)

Last month, Pennsylvania state Sen. Doug Mastriano, a leading voice advancing Trump’s lies about election fraud, won the crowded Republican primary for governor.

The next critical measure of Republican tolerance for election denialism comes Tuesday night.

Mesa County Clerk Tina Peters, who has become Colorado’s most prominent election denier and faces a series of legal battles after years of efforts to undermine the state’s mail-in voting system, is running for the Republican nomination in the state’s primary to become secretary of state.

Even in the illogical world of election denial, Peters is remarkable figure.

She and her top deputy were indicted in March after an investigation by local authorities into a security breach that resulted in confidential voting machine logins, and forensic images of their hard drives, being published in a QAnon-affiliated Telegram channel in early August 2021.

In May, a district judge stripped Peters of her duties overseeing this year’s elections in Mesa County. She has pleaded not guilty.

Peters has also repeatedly aligned herself with far-right figures who have advanced Trump’s lies about widespread election fraud. She appeared at the “Cyber Symposium,” a gathering of election deniers last year in which a host of debunked conspiracy theories about the 2020 election were promoted, and in Colorado with MyPillow chief executive Mike Lindell.

Candidates like Peters — and there are many — only add pressure to the January 6 committee to try to reach the same voters that election deniers are targeting.

 

Can anything break through the election denial noise?

The task is a tall one. But if there’s anything so far from the January 6 hearings that could resonate with Trump loyalists who subscribe to his election lies, it could be testimony like Hutchinson’s.

Far from a Trump critic, Hutchinson worked in the White House in close proximity to the then-President at the time he was challenging the 2020 election — something that gives her account a unique credibility.

Trump attempted to cast Hutchinson’s testimony as revenge on Tuesday, claiming she was “very upset and angry that I didn’t want her” to join his post-presidency staff at his Palm Beach residence. But those around the former President had very different takeaways.

Read this report from CNN’s Gabby Orr and Pamela Brown. Aides to the former President were left speechless during Tuesday’s hearing.

  • “This paints a picture of Trump completely unhinged and completely losing all control which, for his base, they think of him as someone who is in command at all times. This completely flies in the face of that,” one Trump adviser said.
  • “This is basically a campaign commercial for (Florida Gov.) Ron DeSantis 2024,” another Trump ally told CNN.
  • “Anyone downplaying Cassidy Hutchinson’s role or her access in the West Wing either doesn’t understand how the Trump [White House] worked or is attempting to discredit her because they’re scared of how damning this testimony is,” former White House deputy press secretary Sarah Matthews tweeted.

 

Essential Politics: New Mexico shows Trump’s false voter fraud conspiracy is not going away

[Excerpt:]

The controversy began when all three Otero commissioners — elected to govern the county — decided to vote against certifying the vote. The three commissioners — Couy GriffinGerald Matherly and Vickie Marquardt, all Republicans — did not level specific allegations that the results of the June 7 GOP and Democratic primary races were tainted.

Instead, they refused to certify the results over general concerns with a few votes and the efficacy of the election machines run by Dominion Voting Systems. During his attempt to overturn his election, Trump embraced an elaborate conspiracy theory in which Dominion’s voting machines changed votes, ensuring Biden won.

The conspiracy theories are too ridiculous to reiterate here. If you want to learn more, you can read here.

Though the three commissioners could not point to a specific problem with the machines, they said their gut-level concerns were enough to refuse to certify the results, jettisoning about 7,300 votes and going against the recommendation of the county clerk.

(State law requires a simple majority of the three-person commission to certify elections.)

 

Brennan Center for Justice

JUNE 23, 2022

[Excerpts:]
This week, I’ve turned The Briefing over to the senior director of our Elections and Government Program, Lawrence Norden, to review what the January 6 committee hearings reveal about the future of election administration.
—Michael Waldman
This week’s January 6 committee hearing provided more detail about the direct pressure President Trump and his allies put on state officials to help overturn the 2020 election.
Arizona House Speaker Rusty Bowers (R) recounted a campaign by Trump and Rudy Giuliani to get him to submit illegitimate pro-Trump electors on behalf of his state. Trump called Bowers soon after the election, and the pressure continued from November through the morning of January 6.
Georgia Secretary of State Brad Raffensperger (R) and his deputy, Gabe Sterling (R), described a similar campaign to change the election results, including an hour-long call on January 2 in which Trump urged the secretary to “find” him the votes he needed to reverse his defeat.
All three men testified to the personal impact the pressure had on them and their loved ones: disturbing protests outside their homes, threats to their lives, and harassment of their colleagues, neighbors, and family members.
Unfortunately, many of the officials who stood up to the 2020 pressure campaign are leaving. In a recent Brennan Center survey of election officials, one in five said they plan to leave before the 2024 election, with a third citing “political leaders’ attacks on a system they know is fair and honest” as one of their top reasons for exiting.
In the same poll, nearly two-thirds of election officials reported being worried about political leaders interfering in how they do their jobs in future elections, with nearly one in five concerned about facing pressure to certify election results in favor of a specific candidate or party.
Will officials in 2024 stand up to such pressure with the same resolve state and local officials showed in 2020? That will be up to voters in 2022. As the Washington Post and others have reported, dozens of candidates for state and local office have won their party’s nomination this year after denying or directly questioning the 2020 election results.
This includes at least 10 candidates for governor and 3 for secretary of state — critical offices for running and certifying elections — in battleground states such as Pennsylvania and Nevada. It does not include states like Arizona, and Wisconsin, which have election deniers on the ballot and have yet to hold their primaries.
The legal scholar Karl Llewellyn said, “Our government is not a government of laws, but one of laws through men.” Donald Trump understands this. He and his allies are applying relentless pressure to those we rely on to implement our election laws. Let’s hope enough people of integrity remain in the system to sustain it through the current era of election sabotage.

 

CNN: What Matters

Wednesday 06.15.22

Enjoying this newsletter? Forward to a friend!
Questions? Comments? what.matters@cnn.com

by Paul LeBlanc

Election lies at large

 

If the ultimate goal of the House select committee investigating the January 6, 2021, Capitol riot is to connect election lies with dangerous outcomes, the early results aren’t promising.

Tuesday’s GOP primaries proved once again that election deniers are still quite welcome in the Republican Party.

Jim Marchant, a former state lawmaker and a leading proponent of former President Donald Trump’s lies about widespread election fraud, won the Republican primary for Nevada secretary of state.

In his campaign, Marchant pledged to overhaul what he calls the “fraudulent election system” in Nevada, and he’s talked publicly of a “deep state cabal” that he claims has improperly installed candidates in office for years.

Marchant’s claims are outlandish, to be sure, but far from unique. In states across the country, the GOP has repeatedly rewarded those embracing election lies and largely punished those who dare to challenge Trump.

In South Carolina, GOP primary voters on Tuesday tossed out one of the 10 Republicans who voted to impeach Trump over his role in the January 6 insurrection.

In New Mexico, a Republican-led county commission refused this week to certify the results of the June 7 primary election in the county, citing distrust of the Dominion vote-counting machines. (The secretary of state has successfully sued the county commission over the decision.)

In Michigan, the GOP state party convention recently nominated election deniers for both secretary of state and attorney general; Kristina Karamo, the GOP’s secretary of state nominee, has flatly declared that Trump won Michigan (he didn’t).

In Wisconsin, one of the GOP’s leading gubernatorial contenders, Lt. Gov. Rebecca Kleefisch, recently declared that the 2020 election in the state was “rigged” despite multiple studies finding no evidence of fraud.

In Ohio, J.R. Majewski, a candidate who has shared material from the false QAnon conspiracy theory and was a January 6 rally participant, unexpectedly won a primary last month to face vulnerable Democratic Rep. Marcy Kaptur in a newly drawn Republican-leaning district. Majewski has denied being a QAnon follower.

In North Carolina, Sandy Smith, who tweeted on January 6, 2021, that she had just “marched from the Monument to the Capitol,” won a primary last month for an open seat that leans Democratic but is winnable for Republicans in a good year.

Across the country, other Republican candidates with alleged ties to the events in Washington on January 6 — from Jason Riddle in New Hampshire to Derrick Van Orden in Wisconsin — are on the ballot for competitive seats.

RELATED: Election deniers are winning political nominations across the country

All of this GOP energy behind election denialism begs an important question: Can the January 6 committee really convince voters that such lies are bad for democracy, and in some cases dangerous?

At this point, it’s an open question, given that the committee has held only two public hearings this month, with another scheduled for Thursday and two more next week.

Linking election denial and danger

The panel so far has been laying out its case for what it says is Trump’s responsibility for the insurrection. Monday’s hearing prominently featured lengthy portions of former Attorney General William Barr‘s deposition with the committee, where he described in detail why Trump’s fraud claims were “bogus” and why he has seen nothing since to convince him there was fraud.

The select committee’s hearing last week saw a compilation of some of the most disturbing footage from the January 6 attack, gripping testimony from a US Capitol Police officer and Ivanka Trump’s taped comments wherein she said she respected Barr and “accepted what he was saying” about the election.

But if GOP voters are taking their cues from Republicans in Congress, a party-wide mea culpa won’t be happening anytime soon. House Minority Leader Kevin McCarthy recently counseled rank-and-file Republicans in private to largely ignore the investigation into the Capitol riot and stay focused on the issues that are top of mind to voters, like gas prices and inflation, GOP sources told CNN’s Melanie Zanona.

And Trump even released a statement saying Ivanka hadn’t been involved in looking at election results in an effort to shield his voting lies from his daughter’s comments.

In recent days, the committee has also given ammunition to its conservative critics who are eager to make the panel’s investigation more about the panel than the investigation.

The chairman of the committee, Democratic Rep. Bennie Thompson of Mississippi, told reporters Monday that the panel will not make any criminal referral of Trump or anyone else to the Justice Department — a claim that was met with swift pushback from other members of the panel. The following day, the committee postponed its hearing scheduled for Wednesday, citing technical issues.

If those seem like minor transgressions in a sprawling investigation, it’s important to remember the stakes that the committee’s own members have put on their work, and the political environment they’re operating in.

Just 44% of Americans express confidence that elections in the country reflect the will of the people, while 56% say they have little or no confidence in our elections, according to a national CNN poll earlier this year.

As one might expect, the Trump base was most skeptical that American elections are an accurate reflection of who people want to win. Just 1 in 4 (26%) self-identified Republicans said they have faith in US elections. That’s similar to the 29% of White Americans without college degrees and the 25% of conservatives who say the same.

Then there’s this: A majority of Americans (55%) now believe that Trump was either not really or only somewhat responsible for the rioters who overtook the Capitol, according to a recent NBC News poll. That’s up from 47% in January 2021.

What lies ahead

Looming over all of this, of course, is Trump’s potential 2024 White House bid, which would surely be anchored in his unfounded claims about election fraud.

In a 12-page statement released this week, the former President made clear once again that he’s not interested in moving on from the 2020 election.

“Democrats created the narrative of January 6th to detract from the much larger and more important truth that the 2020 Election was Rigged and Stolen,” the statement said.

Unless the January 6 committee can find a wider and more receptive audience, that could soon be a winning campaign message for Republicans everywhere.

 

Dynamic Ideas for Mending our Democracy

 

The Movement for Primary Election Reform Continues

In South Dakota, reformers have gathered far more signatures than needed to get a measure on the ballot in November that would create a Top Two open primary, much like CA and WA use. Those signatures now have to be validated. I prefer the Alaska model of a Top Four primary, but it’s impressive to see how much primary reform is becoming a matter of focus in many state ballot measures for this fall.

 

Opinions | Want to help renovate American democracy? Welcome to Democracy, Refreshed.

Sign up for a newsletter series on how to renovate the republic. 

Opinion by Danielle Allen

https://www.washingtonpost.com/opinions/2024/05/06/democracy-refreshed-newsletter-sign-up/

 

“Can Proportional Representation Create Better Governance?”

John Carey & Oscar Pocasangre have this new paper at Protect Democracy.

 

Watch Archived Video of Safeguarding Democracy Project Webinar, “Business’s Role in Preventing Democratic Backsliding”

This was a great conversation, featuring Daniella Ballou-Aares (Leadership Now Project), Richard Eidlin (Business for America), Ben Ginsberg (Hoover Institution, Stanford), moderated by Richard H. Pildes (NYU School of Law). Watch:

Watch Archived Video of My Commonwealth Club Conversation with Guy Marzorati about My Book, “A Real Right to Vote”

Great conversation that you can watch here.

 

“How an ‘Ice Cream Truck’ for Voting Could Stop Pennsylvania Ballots from Being Tossed”

Bolts:

Neil Makhija spent years promoting voter turnout in South Asian communities, and, as a professor of election law at the University of Pennsylvania, teaching new generations of attorneys about the fragility of the right to vote. But in 2020, he says, he felt frustrated watching the presidential race from the sidelines as then-President Donald Trump and his allies sought to invalidate lawful ballots and overturn election results with a barrage of failed lawsuits.

He decided to run for county commissioner in Montgomery County, a suburban area of 860,000 people northwest of Philadelphia. That board oversees more than half a billion dollars in annual spending across about 40 departments, but Makhija, a Democrat, says he was primarily motivated by one sliver of the body’s authority: setting rules for election administration. 

Having won his election last November, Makhija is now in a position to secure voting rights from the inside. County commissions in most of Pennsylvania double as boards of elections, with broad discretion over election procedures, handing Makhija power to help shape how voting is conducted in the third most populous county of this pivotal swing state. And he’s intent on getting creative.

Makhija tells Bolts he intends to propose that Montgomery County set up a mobile unit that’d go into neighborhoods to help people resolve mistakes they’ve made on their mail ballots.

He likens his proposal, which election experts say does not currently exist anywhere in Pennsylvania, to an ice cream truck for voting.

“Imagine if voting was as efficient and accessible as getting an Amazon delivery or calling an Uber,” Makhija told Bolts. “Exercising fundamental rights shouldn’t be more burdensome.”

 

American democracy is cracking. These ideas could help repair it.

The problems with the U.S. political system can, at times, feel overwhelming and intractable. But solutions can become reality when ordinary citizens engage.

https://www.washingtonpost.com/politics/2023/12/21/fix-american-democracy-voting-rights-supreme-court-senate/

[Excerpt:]
Voting Rights

The issue of voting rights has been at the heart of America’s democracy from the beginning. Who votes, who doesn’t and how easy it is to vote are questions that have been examined, debated, revised and renewed over nearly 250 years. That debate is as charged today as ever.

Trump’s false claims about a stolen election in 2020 have turned what should be a nonpartisan discussion about whether it’s possible to agree on uniform voting methods and procedures into one of the most heated discussions of the day.

After 2020, Republicans in many states enacted laws tightening the rules that govern voting in the name of “election integrity.” In many states run by Democrats, meanwhile, lawmakers have loosened voting restrictions. A push by Democrats to pass federal voting legislation died in the Senate.

Protecting elections from the kind of interference that Trump orchestrated after the 2020 vote and protecting election workers from threats they now regularly receive from election deniers is a priority of voting rights advocates. Lawyers Ben Ginsberg, a Republican, and Robert Bauer, a Democrat, have worked together with local officials to assure as much as possible resistance to attempted meddling with the process in 2024.

Ginsberg said he sees reasons to be hopeful, noting that there are “local community leaders across the political spectrum willing and eager not to have their communities go up in flames.”

Americans vote in lower percentages than citizens in many peer democracies. Automatic voter registration is one idea to encourage more participation. Citizens would become registered automatically at the time they receive a driver’s license, for example. A 2021 study by three California-based researchers found that automatic voter registration boosts both registration and turnout rates in states where it is enacted, and that the increase grows over time. Mandatory voting is another proposal, though more controversial. Voter identification requirements are controversial politically, though they enjoy public support.

Making election day a holiday or moving elections to a Sunday, as is the case in many countries, might make it easier for people to cast their ballots.

 

Psychological science can help counter spread of misinformation, says APA report

George Conway, J. Michael Luttig and 

The writers are lawyers. Mr. Conway was in private practice. Mr. Luttig was a judge on the United States Court of Appeals for the Fourth Circuit from 1991 to 2006. Ms. Comstock represented Virginia’s 10th District in Congress from 2015 to 2019. They serve on the board of the newly formed Society for the Rule of Law Institute.

 

 

Preserving A Liberal Society Requires Better Public Discourse: A Conversation with Berny Belvedere
Nov. 12, 20233
We should expect—and allow—new media platforms foster a better conversation
Listen · 38M

 

“Options for U.S. Federal Involvement in Elections”

New BPC report:

Amid growing threats to election infrastructure and the increased complexity of administering elections, legislators have an opportunity to reassess how the federal government helps state and local officials ensure secure, accessible, and trusted elections. Over the past few decades, the federal government has acted to protect elections from malign foreign actors, passed legislation to change state voter registration processes, and established the first federal agency solely devoted to election administration. The federal government’s role in election infrastructure is at an inflection point that warrants reevaluation to better prepare for the challenges to come.

There is no framework for the federal government’s current or future role in U.S. elections—nor any assessment of needs and opportunities as a basis for making strategic choices and securing optimal impact. The scope and mission of each agency, commission, committee, and department are highly fragmented among entities and from federal to state levels. The result is that the sum of all the independent and often isolated parts fails to function as a cohesive whole.

Forward-thinking policy and structural reform in elections could mitigate partisan-motivated decision-making and eliminate the stopgap mentality common in election legislation. At the same time, the role of the federal government in elections is contentious. Legislators and other federal policymakers face an opportunity to affirm the resilience of U.S. election infrastructure for future generations by determining whether to continue the trend of increased federal involvement, break the trend and decrease federal involvement, or strive to maintain the current level of federal involvement.

This report lays out several options for federal involvement in elections and describes the security, accessibility, and trust trade-offs of each option. The Bipartisan Policy Center consulted with more than 40 election stakeholders in the creation of this report, including representatives from federal agencies, state and local election offices, nonprofit election groups, academic researchers, and philanthropic organizations.

 

Coming Feb. 2024: My New Book: “A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy”

Very excited to be working with Princeton University Press on this new book. More to come!

Why Xi and Putin pretend they run democracies

https://www.washingtonpost.com/opinions/2023/03/23/putin-xi-authoritarianism-democracy/

[Excerpts:]

Autocrats using fake elections to claim popular support while consolidating power isn’t new. Xi and Putin aren’t just hiding behind a fig leaf of legitimacy; they are attempting to redefine the world’s understanding of what “democracy” means. This is dangerous, and real democracies must push back.

To some, Putin and Xi’s democracy playacting might seem harmless. 

But this week’s Putin-Xi summit showed that these two leaders are not simply trying to reframe democracy for domestic purposes. They are claiming ownership of the concept of democracy as a key plank of their proposed new world order — one where the actual struggle for democratic progress is demonized and negated. In 2021, China’s State Council Information Office even released a white paper entitled “China: Democracy That Works” and offered it as a model to the developing world.

More broadly, Putin and Xi are trying to hollow out the very notions of democracy, human rights and the rule of law in the international system.

“Once you get a taste of being autocratic in your own country, you want to be autocratic in the world,” Moisés Naím, author of the book “The Revenge of Power: How Autocrats Are Reinventing Politics for the 21st Century,” told me. “What happens in autocracies doesn’t stay in autocracies. It travels.”

Western democracies would be naive to think Beijing’s narrative isn’t spreading. A report last week by the U.S. Institute of Peace detailed the Chinese government’s extensive global campaign to influence media in the developing world through massive amounts of propaganda, corruption of local media, covert influence operations and co-opting of local officials.

Putin’s and Xi’s attacks on the Western concept of democracy are aided by the erosion of support for democracy promotion here at home. Some U.S. experts argue that the United States ought to ignore the ideological component of great-power competition because it shrinks the space for cooperation with dictatorships.

But the sheer amount of time, effort and resources that Putin and Xi devote to ideological projection shows its importance to them and therefore demands a response. The Biden administration next week is hosting the second iteration of its Summit for Democracy, which aims to bolster international support for these values. But one conference per year is just not enough.

Putin and Xi want to have it both ways; they want to run their systems as dictators while claiming the mantle of democracy in the 21st century. The fact they are pretending shows that they know their actual model is neither popular nor just. Leaders in open societies must ensure that democracy isn’t defined by those who oppose it.

Mr. Foner is the author of “The Second Founding: How the Civil War and Reconstruction Remade the Constitution.”

[Excerpts:]

The 14th Amendment, added to the Constitution in the wake of the Civil War, has been back in the news of late, mostly because the Supreme Court has taken aim at past decisions, notably Roe v. Wade, that employed it to protect Americans’ liberties. The amendment remains the most significant addition to the Constitution since the adoption of the Bill of Rights. Its magnificent first section established the principle of birthright citizenship and prohibited the states from denying to any person the equal protection of the laws, laying the foundation for many of the rights Americans prize.

Long-forgotten provisions of the 14th Amendment are suddenly crying out for enforcement. Section Two provides for a reduction in the number of representatives allocated to states that deny the right to vote to any “male citizens.” (Today this penalty would apply to the disenfranchisement of women as well.) Even at the height of the Jim Crow era, when millions of African Americans were prevented from voting, this penalty was never implemented. But with many states seriously limiting voting rights, its time may have come.

Section Three bars from public office anyone who took an oath to support the Constitution and subsequently participated in or encouraged “insurrection.” The events of Jan. 6, 2021, have focused new attention on this stipulation, which could be applied to participants in the uprising who previously held military, political, or judicial positions, including former President Donald Trump.

 

FINAL REPORT

Select Committee to Investigate the January 6th Attack on the United States Capitol

December 22, 2022

117th Congress Second Session

House Report 117-663

https://www.govinfo.gov/content/pkg/GPO-J6-REPORT/html-submitted/rec.html

Recommendations

1. Electoral Count Act.

As our Report describes, Donald J. Trump, John Eastman, and others corruptly attempted to violate the Electoral Count Act of 1887 in an effort to overturn the 2020 Presidential Election. To deter other future attempts to overturn Presidential Elections, the House of Representatives has passed H.R. 8873, “The Presidential Election Reform Act, ” and the Senate should act promptly to send a bill with these principles to the President. H.R. 8873 reaffirms that a Vice President has no authority or discretion to reject an official electoral slate submitted by the Governor of a state. It also reforms Congress’s counting rules to help ensure that objections in the joint session conform to Congress’s narrow constitutional role under Article II and the Twelfth Amendment. It provides that presidential candidates may sue in federal court to ensure that Congress receives the state’s lawful certification, and leaves no doubt that the manner for selecting presidential electors cannot be changed retroactively after the election is over.

2. Accountability.

The Select Committee has made criminal referrals to the Department of Justice, and both the Department of Justice and other prosecutorial authorities will now make their determinations on whether to prosecute individuals involved in the events resulting in an attack on the United States Congress on January 6, 2021. Additional steps may also be appropriate to ensure criminal or civil accountability for anyone engaging in misconduct described in this Report. Those courts and bar disciplinary bodies responsible for overseeing the legal profession in the states and the District of Columbia should continue to evaluate the conduct of attorneys described in this Report. Attorneys should not have the discretion to use their law licenses to undermine the constitutional and statutory process for peacefully transferring power in our government. The Department of Justice should also take appropriate action to prevent its attorneys from participating in campaign-related activities, or (as described in this report) activities aimed at subverting the rule of law and overturning a lawful election. This report also identifies specific attorney conflicts of interest for the Department to evaluate.

3. Violent Extremism.

Federal Agencies with intelligence and security missions, including the Secret Service, should (a) move forward on whole-of-government strategies to combat the threat of violent activity posed by all extremist groups, including white nationalist groups and violent anti-government groups while respecting the civil rights and First Amendment civil liberties of all citizens; and (b) review their intelligence sharing protocols to ensure that threat intelligence is properly prioritized and shared with other responsible intelligence and security agencies on a timely basis in order to combat the threat of violent activity targeting legislative institutions, government operations, and minority groups.

4. Fourteenth Amendment, Section 3.

Under Section 3 of the Constitution’s Fourteenth Amendment, an individual who previously took an oath to support the Constitution of the United States, but who has “engaged in an insurrection” against the same, or given “aid or comfort to the enemies of the Constitution” can be disqualified from holding future federal or state office. The Select Committee has referred Donald Trump and others for possible prosecution under 18 U.S.C. 2383, including for assisting and providing aid and comfort to an insurrection. The Committee also notes that Donald J. Trump was impeached by a majority of the House of Representatives for Incitement of an Insurrection, and there were 57 votes in the Senate for his conviction. Congressional committees of jurisdiction should consider creating a formal mechanism for evaluating whether to bar those individuals identified in this Report under Section 3 of the 14th Amendment from holding future federal or state office. The Committee believes that those who took an oath to protect and defend the Constitution and then, on January 6th, engaged in insurrection can appropriately be disqualified and barred from holding government office—whether federal or state, civilian or military–absent at least two-thirds of Congress acting to remove the disability pursuant to Section 3 of the Fourteenth Amendment. The Committee notes that Ms. Wasserman Schultz and Mr. Raskin have introduced H. Con. Res. 93 to declare the January 6 assault an insurrection and H.R. 7906 to establish specific procedures and standards for disqualification under section 3 of the Fourteenth Amendment in the United States district court for the District of Columbia.

5. National Special Security Event.

Until January 6th, 2021, the joint session of Congress for counting electoral votes was not understood to pose the same types of security risks as other major events on Capitol Hill. Both the inaugural and the State of the Union have long been designated as National Special Security Events, requiring specific security measures and significant advance planning and preparation. Given what occurred in 2021, Congress and the Executive Branch should work together to designate the joint session of Congress occurring on January 6th as a National Special Security Event.

6. To the extent needed, consider reforming certain criminal statutes, including to add more severe penalites.

As indicated in the Report, the Committee believes that 18 U.S.C. § 1512(c)2 and other existing provisions of law can be applied to efforts to obstruct, influence, or impede the joint session on January 6th, including to related planning efforts to overturn the lawful election results on that date. To the extent that any court or any other prosecutorial authorities ultimately reach any differing conclusion, Congress should amend those statutes to cover such conduct. Congress should also consider whether the severity of penalties under those statutes is sufficient to deter unlawful conduct threatening the peaceful transfer of power.

7. House of Representatives Civil Subpoena Enforcement Authority.

The current authority of the House of Representatives to enforce its subpoenas through civil litigation is unclear. Congressional committees of jurisdiction should develop legislation to create a cause of action for the House of Representatives to enforce its subpoenas in federal court, either following the statutory authority that exists for the Senate in 2 U.S.C. § 288d and 28 U.S.C. § 1365 or adopting a broad approach to facilitate timely oversight of the executive branch.

8. Threats to Election Workers.

Congressional committees of jurisdiction should consider enhancing federal penalties for certain types of threats against persons involved in the election process and expanding protections for personally identifiable information of election workers.

9. Capitol Police Oversight.

Congressional committees of jurisdiction should continue regular and rigorous oversight of the United States Capitol Police as it improves its planning, training, equipping, and intelligence processes and practices its critical incident response protocols, both internally and with law enforcement partners. Joint hearings with testimony from the Capitol Police Board should take place. Full funding for critical security measures should be assured.1

10. Role of the Media.

The Committee’s investigation has identified many individuals involved in January 6th who were provoked to act by false information about the 2020 election repeatedly reinforced by legacy and social media. The Committee agrees that individuals remain responsible for their own actions, including their own criminal actions. But congressional committees of jurisdiction should continue to evaluate policies of media companies that have had the effect of radicalizing their consumers, including by provoking people to attack their own country.

11. Discussion of the Insurrection Act.

The Committee has been troubled by evidence that President Trump’s possible use of the Insurrection Act was discussed by individuals identified in this Report. Congressional Committees of jurisdiction should further evaluate all such evidence, and consider risks posed for future elections.

 

WE MUST FIGHT FOR DEMOCRACY ITSELF

BY U.S. REP. JAMIE RASKIN (MD)

(EPILOGUE TO JANUARY 6TH REPORT)

Celadon Books (2022)

Raskin calla for “a determined public effort . . . to fortify American Democratic institutions against future coups, insurrections, political violence, and electoral subversion”.

Top targets include:

  • Voter suppression and gerrymandering of state and federal districts
  • Use of the filibuster to block voting rights legislation.
  • Right-wing judicial activism that dismembered the Voting Rights Act.
  • Unleashing of  violent extremism and sabotage against public institutions at all levels.
  • The Electoral College, which “consigns the vast majority of Americans in a winner-take-all . . . to “safe” blue or red states where it is perfect clear who is going to win the vast majority of states long before Election Day.

 

How to Save America from Extremism and Authoritarianism by Changing the Way We Vote

Ranked choice voting, multi-member House districts and other surprisingly simple tinkers that could fix our democracy

By David Montgomery

November 6, 2022

Washington Post Magazine

 

The Best Way to Protect Elections From Partisan Manipulation

Election administration is a job for professionals.

 

Coordinating Audits and Recounts to Strengthen Election Verification

November 2022

https://verifiedvoting.org/publication/audits-recounts-nov-2022/

This paper explains how audits and recounts can work together to bolster public confidence in elections.

The 2020 presidential election was followed by an extensive period of scrutiny and challenge. Some of these activities were typical—automatic recounts, optional recounts, and routine tabulation audits—and some were highly irregular. Widespread misinformation sowed confusion and distrust. 

As election officials strive to promote public confidence in our elections, it is important to emphasize that recounts and tabulation audits are normal procedures, and they are vital to our elections. Recounts and audits, when properly designed and conducted, can help assure candidates and the public that there was a fair examination of the results and an accurate count of all legally cast votes. 

State requirements for tabulation audits have been expanding. Recounts are common and will continue to be part of the contentious post-election landscape. Elections need both audits and recounts, and they need audits and recounts to work well together. This paper describes how to dovetail audits and recounts to bolster public confidence in election results. Every state can do better, and this paper provides guidelines for how.

 

Voter Data, Democratic Inequality, and the Risk of Political Violence

56 Pages Posted: 31 Oct 2022

Bertrall L. Ross

University of Virginia School of Law

Douglas M. Spencer

University of Colorado Law School

Date Written: August 15, 2022

Abstract

Campaigns’ increasing reliance on data-driven canvassing has coincided with a disquieting trend in American politics: a stark gap in voter turnout between the rich and poor. Turnout among the poor has remained low in modern elections despite legal changes that have dramatically decreased the cost of voting. In this Article, we present evidence that the combined availability of voter history data and modern microtargeting strategies have contributed to the rich-poor turnout gap. That is the case despite the promises of big data to lower the transaction costs of voter outreach, as well as additional reforms that have lowered the barriers to voting in other ways. Because the poor are less likely to have voted in prior elections, they are also less likely to appear in the mobilization models employed by data-savvy campaigns.

In this Article, we draw on a novel data set of voter data laws in every state and show that turnout rates among the poor are lower in states that disclose voter history data to campaigns. We also find that after states change their laws to provide voter history to campaigns, these campaigns are far less likely to contact the poor.

The consequences of this vicious cycle are already known: the unique interests of the poor have been entirely unrepresented in the political process. Such political marginalization and alienation of an entire class from the democratic process is not only a problem for the poor; it poses a systemic threat to political moderation and democratic stability. Politically marginalized and alienated groups may resort to nonpolitical means to effectuate social change and may also become ripe for recruitment by extremist and anti-democratic elements that are latent in every society. Recent incidents of domestic political violence demonstrate that the United States is no exception.

To address this threat of marginalizing the poor from democratic politics, we advance three sets of proposals. First, we argue that states should regulate the information environment of political campaigns. Prohibiting the collection and distribution of voter history data is not practical, but states should lean into their privacy laws to prohibit the matching of voter files with other administrative data sets and should provide voter history data to campaigns independent of any information about individual political preferences. Second, states should create financial incentives for campaigns to expand their mobilization efforts to include a more representative target population that is more inclusive of the poor. Traditional campaign finance voucher and tax rebate programs are likely inadequate on their own. Instead, we propose a series of novel incentive programs that would provide cash grants to campaigns that report the most donors during each reporting period and to parties that generate more turnout than their historical average. Finally, we advance proposals for social media platforms to self-regulate “look-alike” targeting and segmented online political ads that amplify inequalities in mobilization and exacerbate political marginalization.

Political parties and individual campaigns in the United States are currently not mandated by law to promote political equality. The above reforms aim to align the short-term interests of parties and campaigns (winning the next election) with the long-term public interest in preserving a healthy democracy. Constructing a more inclusive political system will benefit everyone who seeks to live in a sustainable representative democracy, not just those who are currently marginalized. [Boldface added]

Mike Parsons: “New Poll Shows Path Forward on Impartial Election Administration” 

The following is a guest post from Mike Parsons (Senior Counsel for Election Reformers Network and Program Affiliate Scholar at NYU Law): 

It’s no secret that trust in U.S. elections is worryingly low.  But a new survey points the way towards a promising area for bipartisan reforms to shore up confidence in our elections: impartial election administration.  

The nationwide poll of 1,498 likely voters — commissioned by Election Reformers Network (ERN) and released last week — delves more deeply into how voters think elections should be run.  Its findings offer important insights into how to build a realistic and achievable long-term strategy to protect fair elections in our hyper-partisan era. 

To start, the poll found wide partisan differences in perceptions over whether elections are run fairly — no surprise to regular ELB readers.  But, when respondents were asked how election officials should act, large majorities of Democrats, Republicans, and independents alike all said it’s very important that election officials act impartially.  In addition, over two thirds of respondents (again, including large majorities of D’s, R’s, and I’s) said it’s difficult to trust the impartiality of election officials who are elected with the support of a party.  And, perhaps most striking, there was strong support for stricter rules to ensure election officials are impartial and qualified for their roles.  This includes impartiality rules like barring election officials from publicly endorsing candidates or hosting political fundraisers, and qualifications rules like requiring the state’s chief election official to have prior election administration experience.  

In sum, the poll makes clear that voters of all stripes care deeply that elections are run impartially, don’t believe that’s currently happening, and like the idea of reforms that would move us in that direction.  This is valuable (and rare) common ground in an increasingly polarized but critical reform space.  

  To be sure, reform won’t happen overnight.  And it is absolutely vital that we support, protect, and fund election officials currently working on the frontlines of democracy even as we pursue more fundamental reforms.  The overwhelming majority of Democratic, Republican, and Independent/Unaffiliated election workers regularly put country before party and proudly administer professional, accurate, and secure elections that deserve the public’s trust.  Incremental reforms can and should codify existing best practices for impartial administration, accelerate the trends towards professional administration that are already underway, and help make it easier for current officials (including party-affiliated officials) to do their jobs by reducing outside partisan pressures and bolstering voter confidence.  By adopting reforms that de-emphasize partisanship in election management, we can strengthen voter trust in the short term and lay the groundwork for more transformative change over the long term. 

  What does this incremental path look like?  ERN’s model ethics legislation and model qualifications legislation would leave in place the system of partisan elections that most states use to pick their chief election official, while making important improvements. The ethics bill would bar election officials from the most troubling and explicitly partisan acts, like publicly endorsing other candidates or holding political fundraisers. And the qualifications bill would require that candidates for chief election official have some experience or expertise in running elections — a simple, common-sense rule that would have disqualified almost all of this year’s election denier candidates.  

Both bills would begin the process of shifting the candidate pool for chief election officials away from partisan politicians and toward independent professionals.  Both bills take steps that respondents to the survey said they support.  And both bills lay key groundwork for more fundamental reforms. 

  Of course, we shouldn’t lose sight of those longer-term goals.  Ultimately, states should do what nearly every other advanced democracy does: use non-partisan experts to run elections.  One promising approach for choosing them would be to give the task to an independent commission modeled on the judicial nominating commissions already used by a number of states.  This may seem far off from our current reality – but so too were independent redistricting commissions not too long ago.   

  And there are good reasons to think that the prospects for this path to reform are real. 

  First and foremost is the urgency of the threat.  With election deniers potentially in line to become chief election officials in several states, it has become clearer than ever how entrusting these crucial posts to partisan politicians can pose risks to fair elections or, at the very least, public confidence in the fairness of our elections.  Simply put, the risks of inaction are now too great.    

In addition, the survey findings confirm that many voters deeply distrust our current system, and support exactly these types of changes. This reform energy is also reflected in the growing number of states — Michigan, Colorado, New Mexico, Missouri, and Wyoming, to name a few — that are exploring ways to make their election systems less vulnerable to partisan manipulation.  

But perhaps the greatest sign is that these reforms command such widespread support across party lines.  Like the potential for reforms to the Electoral Count Act, incremental reforms to enhance and advance impartial election administration are something that almost everyone can agree on.  And in that the survey offers a bit of something we all need: hope. 

 

“Inside the secret $32M effort to stop ‘Stop the Steal’

Politico:

A pair of progressive organizations operating in complete secrecy spearheaded a $32 million campaign during the midterms to push back against former President Donald Trump’s “Stop the Steal” movement.

The effort, first reported by POLITICO, was undertaken by two newly created groups: Pro-Democracy Center and Pro-Democracy Campaign. Those groups operated in states across the country as the election system faced unprecedented pressure from Trump and his allies, who falsely said that the 2020 election was stolen.

Among the initiatives funded included:

  • Supporting organizations that were pushing for expansive ballot measures on voting in Arizona and Michigan.
  • Boosting voter outreach programs, like groups hosting registration drives at local jails in Pennsylvania and “souls to the polls” events in Florida.
  • Backing campaigns to urge local officials to expand access to early voting.

Altogether, the organizations funded 126 groups across 16 states, from national battleground states like Arizona and Pennsylvania to places like South Carolina and New Jersey, where most statewide races have not been particularly competitive.

“It was very clear that there was a mobilized constituency that cared about democracy, but it was on the wrong side,” David Donnelly, the veteran progressive operative behind the groups, said of conservative election activists after 2020. “And there wasn’t as big of a response to what we needed to have to defeat it.”…

Donnelly said that his organizations are not going away, and are “going to continue to support groups building their capacity over time.”

But he did note some uncertainty among large donors in the space about whether the fight is over.

A concern he hears in the fundraising world is that some feel “like, ‘oh, we averted the kind of disaster scenario of all these elections deniers winning in key offices, therefore we don’t have to worry about this right now. Trump’s on the field, but he’s not as powerful anymore,’” Donnelly said.

“That is a whistling by the graveyard attitude,” he continued. “We narrowly held the line, and nobody is going away on either side.”

“Securing the 2024 Election”

election subversion risk

New Brennan Center report with recommendations for 2024. Among them:

Priority: Combat election disinformation

State lawmakers should prohibit the spread of false information about the time, place, and manner of voting when it is shared with the intent to prevent voters from voting.

The federal Cybersecurity and Infrastructure Security Agency should work with federal and state partners to migrate local election offices’ websites to .gov domains, which are only given to U.S.-based government entities and signal credibility to voters trying to find accurate information.

Priority: Protect election workers

The Department of Homeland Security should continue to require states to spend a portion of homeland security grants on election security, as it did in fiscal year 2023.

State lawmakers should prohibit intimidating conduct at the polls and anywhere else election officials are working. They should allow election workers to shield their personally identifiable information from the public.

Priority: Defend against insider threats

Local election officials should develop training, regulations, and protocols that help prevent, identify, and respond to insider threats (when rogue election workers themselves put election security at risk).

The federal Cybersecurity and Infrastructure Security Agency should develop best practices to guard against insider threats.

Priority: Ensure technological resilience

Local election officials should create backup systems and plans so that voting can continue in the event of a cyberattack or technical issue.

State lawmakers should mandate post-election audits.