By The American Contemporary
The Senate Judiciary Committee has recently released a proposed bill tackling voting accessibility and regulation of voting procedure. The bill, entitled “The John R. Lewis Voting Rights Advancement Act of 2024” is largely reactionary to the Supreme Court Ruling in Brnovich v. Democratic National Committee which was adjudicated in 2021, and amends the Voting Rights Act of 1965. While the bill on paper offers a series of safeguards for election integrity, particularly around those who would otherwise be subject to voter suppression, it also opens the door to debate about excessive regulation of voting, and the potential pitfalls of the modern political system when it comes to fair and free elections. Here, we will briefly explore the background of this new bill, and discuss some of its implications from a politically fundamental perspective.
To provide commentary on this new bill, we must first address and understand the original bill which it seeks to modify. The Voting Rights Act was signed into law by Lyndon Johnson in 1965, and sought to enforce the 15th amendment more fairly and aggressively in a segregated society. Minority groups, especially black Americans (but still including other racial groups ranging from Chinese to Irish, to Italians) often faced additional institutional hurdles when it came to voting. These included requirements to vote such as literacy tests, poll taxes, threats of violence or harassment, and bureaucratic filing restrictions. The 15th amendment precluded such things from interfering with the right of these individuals to vote, and as such, the Voting Rights Act was introduced to end these practices and better guarantee the opportunity to vote for all peoples.
Over the years several challenges and clarifications were brought before the courts, however most recently, the Supreme Court ruled in 2021 on Brnovich v. Democratic National Committee. This case was born in Arizona, where state voting laws allowed two methods of voting for citizens: 1) in-person voting, which was conducted at precinct or voting centers on election day, and 2) “early voting” where voters received a ballot via mail and either returned the ballot via mail, or deposited the ballot at a designated drop-off location. It should be noted that Arizona had these laws in place for over 25 years, allowing citizens to choose whichever method best suited their needs and desires. The issue arose from the precinct-based voting procedure, which accounted for ~90% of voters in Arizona. Under this system, citizens are registered to a particular voting location. If a voter arrives at a polling place where they are not registered, their vote is separated into a provisional category. If it is determined that the vote was cast by a person belonging to another precinct, the vote is discarded. This is true even if the vote was cast without error and assuming the voter was eligible.
Additionally, Republican lawmakers in 2016 passed H.B. 2023, a law which sought to limit potential abuse in the mail system of voting. Under this new law, restrictions were placed on the handling and delivery of other people’s mail ballots. Specifically, the law (which did not apply to caregivers and family members) made solicitation of ballot delivery, sale of ballots, and procession of ballots with intent to coerce or commit fraud illegal. Additionally, it made collection of other people’s ballots a felony, whether they were filled in or not (again, not including family and caregivers). Between H.B. 2023 and the above mentioned restriction on vote counting based on precinct registration, the Democratic National Committee opened litigation against the state, claiming that these policies affected minority groups in the state based on factors of race, and thus violated the Voting Rights Act.
The case eventually made its way to the Supreme Court, with the open questions of whether H.B. 2023 violate Section 2 of the Voting Rights Act or the Fifteenth Amendment, and whether Arizona’s out-of-precinct policy violate Section 2 of the Voting Rights Act? The court eventually ruled with Arizona on all claims, stating that they did not view the decision of the state to have been made with discriminatory intent. Further, the opportunities to vote present little collective burden to anyone, and do not appear to present anything that creates non-normal degrees of burdens for voting. The dissenting opinion of the court argued that the ruling opinion was too narrow in scope and failed to fully address the impact of race on voting procedure and opportunity.
Thus, we come to our current senatorial bill, The John R. Lewis Voting Rights Advancement Act of 2024. This bill, which can be read here (and is summarized by the writers here), attempts to create new laws that provide more protections for minority voters. These new regulations include “retrogression considerations”, which state that any change made to voting policy which is negative compared to the status quo for minority groups constitutes a violation of Section 2 of the Voting Rights Act. While there is some degree of objectivity in this, the actual interpretation of what is advancement is extremely open ended, and relies on identifying “purpose or will have the effect of diminishing the ability to vote” in minority groups.
Additionally, this new bill seeks to eliminate vote denial or delusion in Section 2, which the authors of the bill claim was diluted by the Supreme Court Ruling. Effectively, this could be used to challenge thrown out votes from those who cast ballots in incorrect polling places. The proposed bill summary also lists the Supreme Court’s decision as “harmful” and seeks to allow Section 2’s definition of voter dilution instead to be viewed via the “totality of the circumstances”, as defined in Thornburg v. Gingles. The new bill also addresses several aspects of voting preclearance, a series of requirements mandated by the federal government to make changes or alterations to voting protocol. These new rules would more closely restrict and limit changes to voting regulations, based mostly around the concept of fair election practices as described in the bill.
While there are many other nuances to the bill which are beyond this essay, the final provision set forth by this new bill which is worth addressing is the proposed modification to Section 8 of the Voting Rights Act. Normally, enforcement of the Voting Rights Act and the 15th Amendment is entrusted to the Attorney General. This new bill however, expands the circumstances by which the Attorney General may intervene in cases of potential voter suppression. Additionally, the Attorney General would be given the ability to hire, train, and dispatch aids, observers, and vote counters to watch and assist in voting procedure to ensure they are progressing as expected.
There is much more to this bill, but these initial talking points provide more than enough material through which we can consider, analyze, and ponder voting rights and laws. Here, let’s consider the bill and its potential implications, withdrawing any ancillary philosophical discussions such as “who has the right to vote” or “what constitutes a minority group”?
First and foremost, we must address voting suppression. For a system such as that used in the United States, the general rule of thumb is that a law-abiding citizen has a right to vote. Thus, any undue hindrance to exercising this right would a direct violation of their constitutional rights, and from a fundamentalist perspective, be wrong. Procedures to safeguard this, such as those enshrined in the 15th amendment and the Voting Rights Act help to ensure loopholes are not being made which undermine the ability of Americans to cast their ballot.
Speaking first on the pros of this proposed bill, it is beneficial that it seeks to ensure political games cannot be played to suppress or manipulate the electoral process. I do find myself wishing that practices such as gerrymandering were addressed here as well, however that is not necessary to improve circumstances today. Creation of hurdles, such as limiting registration windows or limiting the people who can handle ballots, may in some cases prevent individuals from casting their ballot. Additionally, linguistic limitations may create hardships for those who immigrate to the US and have a learning grasp of English. Thus, regions with high immigrant populations may need language support resources, if they do not wish to have multilingual ballots. Essentially, these tools and reinforcements of fundamental principles of equal voting opportunity for citizens is essential for ensuring that people have the ability to make their voices heard, a basic tenant of the American political system.
Yet, despite its represented noble intention, there are several considerations that are worthy of discussion. First, the bill makes it clear within its own language that it is reactionary, and written to curtail the impacts of the Supreme Court’s decision between the DNC and Arizona. While it is not unusual for laws to be proposed in response to court rulings, nor is it illegal, these bills are always worthy of scrutiny and caution. In particular, it may be argued that such a bill does not necessarily seek to introduce anything new or correct a need missed by the federal government, but instead is attempting to circumvent existing legal precedent. Thus, it could be argued that laws such as these are not truly made with the intention of the people in mind, but rather the propagation of a political ideal. Furthermore, one could see similarities between such measures taken here and those used to segregate individuals following the passing of the 15th amendment. When segregationists were no longer permitted to preclude voting by minorities, they instead passed laws that made it more challenging to vote, using new laws to push their own agenda. So too here could one see the pushing of ideology rather than working toward genuine law advancement. Whether or not such a law truly provides benefit in accordance with the constitution is, of course, a case-by-case debate.
Second, this bill does create more opportunity for voter irregularities or fraud potential. Now, this is not to say that fraud is rampant, nor does it speculate that fraud has or will occur. Instead, it merely creates circumstances through which manipulation may be more accessible. By allowing individuals to cast their ballots in non-registered polling places, or allowing others to carry or deliver ballots, there are more opportunities for votes to be missed, manipulated, or over-counted along their journey. Further, the nebulous definition of what is and is not voter suppression or a barrier to voting makes changes or modification to voting procedure more challenging, thus reducing local and state powers to quell suspected cases of fraud. For a democratic republic, election integrity is paramount to ensuring stability and longevity of the nation. Should the public perception of fair elections be tarnished, it could result in further disunity and discontent in the nation. To reiterate, this is not to say election interference is guaranteed, but rather it creates more opportunities for it.
This new bill also follows the frustrating trend of modern federal legislation to further centralize powers and rights in appointed federal actors. Here, the federal attorney general is given further powers to control, modify, review, and observe the electoral process. This is concerning on two central points: 1) it gives the federal government more ability to interfere with local and state electoral processes, which could embolden them to act in ways that are contrary to public interest, and 2) it gives more power of influence to bureaucratic appointees who are unelected by the public they represent. It is evident in recent years that while the judicial system should ideally remain apolitical, attorneys are using their powers and platform to advance political agendas. This is evident on both sides of the isle, with recent examples including attorneys suing to fight climate regulations to aid big business, and attorneys suing to remove Donald Trump from ballots before any convictions were rendered on his various trials/lawsuits. Thus, it is fair to assume that an appointee of the president would likely share similar political ideologies as the appointer, and would generally act in said person’s best interest. This creates a conflict of interest which not only could damage the legal system of the United States, but the electoral process as a whole. Should a corrupt official be given this power, incumbents could utilize these new powers to effectively coerce and force policies that benefit one party over another. Again, this is not to say this is how such a power would be used, but it is a concern which should be addressed. Further, the lack of generalized bipartisan reform to voting, such as challenging gerrymandering, leads me to speculate that these efforts to improve voting accessibility may not be as purely altruistic as they appear (though on this matter I hope I am incorrect).
Thus, we come to the crux of our analysis: where do voting safeguards end and control of voting begin? This is a philosophically complex question, as one could make a fair argument towards point ends of the spectrum. Without any safeguards or controls, manipulation is assured, reducing people’s ability to participate in the voting process. Yet more regulation not only increases the costs associated with voting, but centralizes the capacity of corruption rather than the more anarchic state-by-state or local-level corruption you otherwise would see. From a politically fundamental perspective, it seems to be most logical that enforcement of fair voting is superior, yet this should not be done via more regulation or law, but rather enforcement of existing law. Perhaps one solution is to create a national holiday around election day, removing burdens across the board equally. Further, constant and standardized procedures could help prevent abuse or corruption, such as caregiver protocols, or proof of ID and state/local residency without polling-specific location requirements. Of course these are all just concepts which would need expanding, but it provides starting points for achieving true voting equality, where people’s voices are truly heard rather than just manipulated or silenced.