- Senate Democrats last-ditch push to face voting rights legislation failed on Wednesday night.
- Senate Republicans voted down wide-ranging legislation that would reshape American elections.
- Here's what the "Freedom to Vote: John R. Lewis Act" would have done.
The Senate on Wednesday voted against the Freedom to Vote Act and The John Lewis Voting Rights Advancement Act, striking the fatal blow into Senate Democrats' effort to pass major voting rights legislation.
On January 13, the House passed the two bills, now combined into one, titled "Freedom to Vote: John R. Lewis Act." Democrats used an unrelated NASA bill as a legislative vehicle to fast-track consideration of the measure in the Senate. Because the NASA bill had already been considered by both chambers, it proceeded to debate with a simple majority instead of the usual 60 votes required to advance to debate.
But despite Democrats' creative procedural workarounds, 60 votes were still required to end debate, and the legislation was, as expected, unanimously blocked by Republicans. Schumer's subsequent move to hold a vote on changing the Senate filibuster rules also failed, with all 50 Senate Republicans and two Democrats, Sens. Joe Manchin and Kyrsten Sinema, voting against the plan.
If the bills had passed, they would have massively reshaped the landscape of voting and election administration in the United States.
The Freedom to Vote Act would standardize voting election laws across the country and would significantly expand voting access, including reversing the effects of dozens of new state-level voting restrictions passed this year. The John Lewis bill would restore key provisions of the Voting Rights Act of 1965 that have been struck down or weakened by the Supreme Court, and change the way federal courts handle election cases.
Provisions from The Freedom to Vote Act
The Freedom to Vote Act, or FTVA, is the slimmed-down successor to H.R. 1, a massive Democratic messaging bill on voting rights, campaign finance, and federal ethics, that passed the House in March.
After Senate Republicans filibustered H.R. 1 in June, a group of Senate Democrats drafted the FTVA, incorporating significant feedback from Democratic Sen. Joe Manchin, election officials, and other stakeholders.
All 50 Senate Republicans moved to block debate on the bill when it came up for a vote in late October.
What the bill would require on voting access:
- Election Day as a federal holiday.
- Online, automatic, and same-day voter registration.
- A minimum of 15 days of early voting, including during at least two weekends.
- No-excuse mail voting with ample access to ballot drop boxes and online ballot tracking, in addition to streamlined election mail delivery by the US Postal Service.
- States would need to accept a wide range of forms of non-photographic identification in places where ID is required to vote.
- Counting eligible votes on provisional ballots cast in the wrong precinct.
- Restoring voting rights to formerly incarcerated people convicted of felonies.
- Imposes stricter regulations on voter list maintenance that make it harder for states to remove eligible voters from the rolls.
- More protections and resources to serve voters with disabilities and overseas/military voters.
- Greater federal protections and oversight for voting in US territories.
- Improving voter registration resources and outreach, in addition to reauthorizing and strengthening the US Election Assistance Commission.
- The bill also includes the Right to Vote Act, which creates an affirmative right to vote in federal law.
On election administration and redistricting:
- Prohibits partisan gerrymandering by requiring states to use certain criteria when drawing new congressional districts.
- Requires states to use voter-verifiable paper ballots and conduct post-election audits.
- Gives cybersecurity grants to states and directs the EAC to strengthen cybersecurity standards for voting equipment.
- Prohibits local election officials from being fired or removed without cause.
- Makes interfering with voter registration a federal crime, and imposes stricter penalties against harassment, threats, and intimidation of election workers.
- Restates chain of custody requirements protecting the integrity of ballots and election materials, a provision meant to combat unofficial partisan "audits."
On campaign finance:
- The bill includes the DISCLOSE Act, which targets so-called dark money in elections, and the HONEST Ads Act, which seeks to enhance transparency in campaign advertising.
- Creates a public financing program for House elections and allows candidates to use campaign funds for "personal use" services including childcare.
- Creates a federal obligation for campaigns to report instances of foreign interference.
- Stricter enforcement of illegal coordination between single-candidate PACs and campaigns.
- Stronger enforcement of campaign finance regulations by the Federal Election Commission.
Provisions from the John Lewis Voting Rights Advancement Act:
The John Lewis VRAA takes particular aim at the Supreme Court and federal courts, seeking to undo rulings that have struck down or weakened key components of the landmark Voting Rights Act of 1965.
Most significantly, it creates a new formula to restore the federal preclearance requirement mandating states with histories of discrimination to seek permission from the federal government before enacting new voting rules or redistricting plans. The Supreme Court struck down the previous coverage formula in the landmark 2013 Shelby v. Holder decision.
It also undoes the Supreme Court's 2021 decision in Brnovich vs. DNC, which significantly watered down the protections against race-based voter discrimination under Section 2 of the VRA.
The House version of the bill passed that chamber in late August. The Senate version, which has some relatively minor differences, was filibustered by all but one Senate Republican in November.
- Reverses the Supreme Court's new "guideposts" and standards from the Brnovich decision that make it harder for plaintiffs to prove racial discrimination under Section 2 of the Voting Rights Act.
- Enshrines judicial precedent and legislative history to strengthen efforts to draw majority-minority districts under the parameters of the Voting Rights Act.
- Restores the federal preclearance regime that the Supreme Court struck down in Shelby. The bill creates a new coverage formula that requires states with recent histories of voting rights violations.
- Takes aim at the federal courts by requiring judges to explain their reasoning in emergency rulings they take up on the so-called shadow docket, and tries to limit judges' from relying solely on the proximity to the election in deciding emergency cases on election rules, known as the Purcell principle.
- The Senate version of the law also includes the Election Worker and Polling Place Protection Act, which provides greater federal protections for election workers against harassment and intimidation.
- The Senate version further tacks on the Native American Voting Rights Act, a bill that strengthens voting rights and voter protections for voters in Indian Country.
What about the Electoral Count Act?
If these two bills fail, as expected, the best chance for serious election reform may be an update to the Electoral Count Act of 1887, which governs how Congress counts electoral votes and seeks to provide a pathway for Congress to resolve disputed elections.
In the year since the January 6 insurrection, experts from across the political spectrum have called for Congress to modernize the 19th-century law after former President Donald Trump and his allies exploited its ambiguities to try to pressure former Vice President Mike Pence to overturn Trump's Electoral College loss.
In particular, experts have advocated for Congress to clarify that the vice president's role is strictly ceremonial, clarify the standard for raising objections, (especially in cases where states have submitted just one uncontested slate of electors), and raise the bar for the number of lawmakers needed to raise an objection.
Efforts to reform with lawmakers in both chambers are currently pursuing four separate endeavors to reform the law. In the Senate, a group of Democrats led by Sen. Angus King is planning on introducing a bill on the legislation, and a bipartisan group of moderate Senators are also exploring the issue.
"It's early in the process. We exchanged a list of changes we'd like to see as corrections we'd like to make to the Act, as well as other provisions related to elections," Sen. Mitt Romney of Utah, a member of the bipartisan group, told reporters on Tuesday.
In the House, both the Select Committee on the January 6 insurrection and the Democrats on the House Administration Committee are planning to release their own analyses and recommendations for reforming the law.
Democratic congressional leaders and the White House, however, have said that ECA reform on its own is insufficient and not a substitute for passage of major voting rights legislation.
The number of different proposals on Capitol Hill, the lack of support for a standalone ECA bill (so far) from Democratic leadership, and no clear deadline are also working against the possibility of any ECA reform.
"I don't think there's an urgency to get this done immediately, in part because we don't have an election where the Electoral Count Act will come into play for three years," Romney said.