Another Bill in Congress to Give Partisan Bureaucrats Control Over State Election Laws

COMMENTARY Election Integrity

Another Bill in Congress to Give Partisan Bureaucrats Control Over State Election Laws

May 26th, 2021 5 min read
COMMENTARY BY
Hans A. von Spakovsky

Election Law Reform Initiative and Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.
Making sure that every eligible citizen is able to vote and that their vote is not lost or stolen through fraud or errors is not voter suppression. LPETTET / Getty Images

Key Takeaways

Discrimination in the context of voting today is very rare; it is not a “continuing” occurrence.

The bill would force racial gerryman­dering, make race the predominant factor in the election process, and prevent commonsense election reforms such as voter ID.

HR 4 is an anti-democratic federal power grab designed to thwart election reform and manipulate redistricting decisions made by the states.

One of the false narratives constantly pushed by liberals is that the efforts of states to reform and fix vulnerabilities in their election systems are somehow examples of “voter suppression.” 

Nothing could be further from the truth. Making sure that every eligible citizen is able to vote and that their vote is not lost or stolen through fraud or errors is not voter suppression—it is good governance.

The latest attempt to push this myth will occur Thursday before the House Judiciary Committee in a hearing with a title that is an exercise in deception: “Oversight of the Voting Rights Act: A Continuing Record of Discrimination.” 

Discrimination in the context of voting today is very rare; it is not a “continuing” occurrence.  Census Bureau data show that black voter registration and turnout today are on par with or exceed that of white voters in many parts of the country, and there are no disparities traceable to discriminatory behavior by states. 

>>> Voter Suppression? Dems Flat-Out Wrong. Census Data Gives Real Story About U.S. Elections

In fact, the Census Bureau survey of the 2020 election concludes that it attracted “the highest voter turnout of the 21st century.”

During the entire eight years of the Obama administration, the Justice Department filed only four enforcement cases under Section 2 of the Voting Rights Act, which prohibits discrimination in voting.

This latest House hearing to push the myth of voter suppression is to undergird support for legislation numbered HR 4, or “The John Lewis Voting Rights Advancement Act.” The bill would give liberal, biased bureaucrats in the Justice Department the power to veto changes of polling place locations, voter ID and registration requirements, and the boundary lines of redistricting in every single state.

The bill also would change legal standards to make it extremely difficult for states to defend themselves against meritless litigation challenging their election reform efforts.

The legislation is intended to overturn the Supreme Court’s 2013 decision in Shelby County v. Holder, which struck down the coverage formula for Section 5 of the Voting Rights Act.  Section 5 was intended to be a temporary provision that required covered jurisdictions to get approval (pre­clearance) from the Justice Department or a federal court in Washington before making any changes in their voting laws.

But the high court’s decision didn’t affect other provisions of the Voting Rights Act that protect voters, such as Section 2, which is a permanent, nationwide prohibition on discrimination. There is no need for new legislation reimposing (and expanding) the onerous preclearance requirement, and no evidence that the permanent provi­sions of the Voting Rights Act are inadequate to protect voters’ rights.

The proposed legislation also is almost certainly unconstitutional because it doesn’t satisfy what the Supreme Court said was required for cover­age: The 1965 standards were obsolete, and any requirement that states obtain federal approval of election changes could be imposed only if Con­gress found “blatantly discriminatory evasions of federal decrees;” a lack of minority officeholders; voting tests and devices; “voting discrimination ‘on a pervasive scale;’” or “flagrant” or “rampant” voting discrimination. Those conditions are nowhere to be found in 2021.

Although the stated purpose of the bill is to prevent racial dis­crimination, it would force racial gerryman­dering, make race the predominant factor in the election process,  and prevent commonsense election reforms such as voter ID.

The bill’s new coverage formula would place jurisdictions under Justice Department preclearance if the agency determines that 15 “vot­ing rights violations” occurred during the “previous 25 calendar years” by local jurisdictions or that 10 “voting rights violations” occurred during the “previous 25 calendar years” if one of those violations was by the state government.

Because tallying up court rulings against a jurisdiction, including settlement agreements and consent decrees, would trigger coverage, the Justice Department and outside groups would have an incentive to file as many objections as possible and to manufacture litigation. Even settlements of meritless litigation that a state makes to avoid the cost of litigation would count as a “voting rights violation” for purposes of triggering preclearance coverage. 

But even more concerning, this legislation has a new, unprecedented provision that did not exist in the Voting Rights Act priorto the Supreme Court’s Shelby County decision, and it would vastly expand the Justice Department’s  power and reach.

The provision would create a “practice-based preclearance” requirement that would apply to every single political jurisdiction in the country, regardless of whether that jurisdiction is included under the new 10-year coverage formula or ever had a history of discrimination.

The new rules would be so broad that they effectively would mandate preclearance for almost any change a jurisdiction may wish to make to its election administration procedures. This startling invasion of state sovereignty is most likely unconstitutional, particularly since it would allow the Justice Department to object to a change in election administration based purely on statistical disparities, without any showing of discriminatory purpose or intent. 

The bill also would introduce a new legal standard for obtaining injunctive relief from a court. Normally, a party must show a substantial likelihood of succeeding on the merits and that it likely would suffer irreparable harm if a judge does not grant an injunction. 

>>> Enabling Partisan Federal Bureaucrats to Control State Election Laws: The John Lewis Voting Rights Advancement Act (H.R. 4)

Under the bill, however, if a plaintiff such as the ACLU simply “raise[s] a serious question” about a voting change and a court determines that the “hardship” imposed on the state by enjoining the change is less than the “hardship” that would be experienced by the plaintiff if an injunction is not issued, the court must grant an injunction. 

This weaker standard favors plaintiffs’ lawyers, reverses the principle that the burden of proof is on a plaintiff, not a defendant, and dramatically increases the odds that an injunction will be granted against state and local governments. The bill even severely restricts the ability of federal appeals courts, including the Supreme Court, to issue stays of such injunctions.

Put simply, Americans today have an easier time registering and voting than at any other time in our nation’s history. There is simply no need to bring back the preclearance provisions of Section 5 of the Voting Rights Act and certainly no need to implement a new, vastly expanded Section 5. 

It is not 1965, and no justification exists anymore for giving the federal government the ability to veto election laws and regulations that citizens and their elected representatives choose to implement in their respective states. 

HR 4 is an anti-democratic federal power grab designed to thwart election reform and manipulate redistricting decisions made by the states.

This piece originally appeared in The Daily Signal.