The Latest Election Takeover Attempt

COMMENTARY Election Integrity

The Latest Election Takeover Attempt

Feb 6, 2020 3 min read
Hans A. von Spakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.
House Speaker Nancy Pelosi speaks during a news conference before the House votes on the H.R. 4, The Voting Rights Advancement Act, on December 6, 2019. Mark Wilson / Staff / Getty Images

Key Takeaways

This bill seeks to overturn the Supreme Court ruling in Shelby County versus Eric Holder.

The Constitution grants states the right to administer their own elections.

This bill is flat out bad policy and a blatant attempt to take over and federalize the election process.

Would you like to have Washington take over all state and local elections and stop the reforms intended to improve the integrity and security of the voting process? If you say yes, then you might be in luck. This week, the House of Representatives has taken up the Voting Rights Advancement Act, though the bill would be more accurately named the Election Fraud Advancement Act or even the Federal Takeover of Local Elections Act.

The bill seeks to overturn the Supreme Court ruling in Shelby County versus Eric Holder. That ruling back in 2013 threw out the provisions of sections four and five of the Voting Rights Act, which required a small number of states with old histories of discriminating against minorities to get federal approval of any proposed changes to their election laws. The requirements covered everything from drawing new district boundaries to putting in place fraud prevention measures such as voter identification.

As a purely legal matter, these sections represented an unprecedented intrusion into state sovereignty. The Supreme Court ruled in the Shelby County decision that, while such an extraordinary requirement may have been necessary in 1965, it could no longer be justified. After nearly a half century, the civil rights picture had vastly improved in the covered states, so there was no longer any justification for making them get the blessing from the Justice Department before administering their own elections.

Progressives acted as if this ruling would usher in a new Jim Crow era. Since then, they have pushed the false narrative that an epidemic of voter suppression has erupted, a myth completely exploded by the increased voter turnout recorded in many subsequent elections. What the left has conveniently failed to mention is that the Shelby County decision did not affect section two of the Voting Rights Act, which remains the permanent nationwide provision that bars racial discrimination in the voting context. That section continues to protect all voters from any real suppression.

Progressives just do not like the fact that they now have to actually go to court and prove that a state is engaging in discrimination to enjoin a new election law. They liked the old system where a partisan attorney general like Eric Holder could be counted on to object to election reforms they did not like or redistricting plans that did not help Democrats. South Carolina had to go to federal court in 2012 to overturn the meritless objection to its new voter identification law. South Carolina was successful but only after spending millions of dollars to litigate against the Justice Department.

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Not only would the bill bring back the approval process for those states freed by the 2013 decision, as well as other states never covered before, it would empower the Justice Department to arbitrarily stop election reform and redistricting changes in all 50 states. To give one example, any states looking to require “proof of identity” to register or vote in their elections would first have to get the approval of the Justice Department. The goal is obviously to give liberal career lawyers in the Civil Rights Division, where I used to work, the power to stop state reforms such as requiring proof of citizenship when registering to vote, which is a very reasonable reform needed to prevent noncitizens from illegally participating in elections. 

The bill also stipulates that any redistricting changes that would reduce, by three points or more, the proportion of minority voters in a district would also have to get Justice Department approval. It would make it much easier for activist groups to sue state and local governments and get injunctions against changes they do not like. Rather than having to prove their case like any other plaintiff in any other case in any other court, all they would have to do is raise a “serious question” of whether the change violates the law and will pose a “hardship” to the plaintiff.

The Constitution grants states the right to administer their own elections. If it passes, the bill would gut that right and empower liberal activists to stop the election reforms needed to protect the integrity of the electoral process. It would also enable them to manipulate redistricting to help the candidates and political parties they favor. The bill is flat out bad policy and a blatant attempt to take over and federalize the election process.

This piece originally appeared in The Hill on 12/6/19