With the "Corrupt Politicians Act" (H.R. 1/S. 1) floundering, Democrats are now planning to take over elections from Washington via last year’s failed H.R. 4, the John Lewis Voting Rights Advancement Act.
Despite its inspirational label, H.R. 4 is the Left’s Trojan horse to accomplish many of H.R. 1/S. 1’s policy goals through a back door.
All Americans – particularly Republicans in Congress – need to recognize H.R. 4 for the unnecessary power grab it truly is, and not be fooled by false propaganda about "voting rights."
All Americans can be proud that voting rights have never been stronger – or more widely enjoyed by Americans of every background – than they are today in 2021. It’s the voting outcomes that Democrats don’t like – and shredding long-held norms is their strategy du jour to change those outcomes.
H.R. 4 would put more power in the hands of the federal government to control state election procedures, make it harder for states to enact important election integrity safeguards, lower the legal standards for obtaining injunctions, and allow the federal government to use its new power to attack laws in the states well beyond voting rights.
We do not even know yet exactly what will be in this year’s version. House Speaker Nancy Pelosi, D-Calif., said it would not be re-introduced until the fall so that Democrats can fix its constitutional problems.
Not that unconstitutional power grabs have stopped Pelosi in the past. In reality, Pelosi’s delay is more about a continuing current push to pass pieces of H.R. 1 before shifting to H.R. 4.
Last year’s H.R. 4 would have resurrected the preclearance coverage formula of Section 5 of the Voting Rights Act (VRA) of 1965, which required certain states and localities to receive approval from Washington for proposed election changes. Preapproval was required for even minor changes like moving a polling place from the firehouse to the community center! Should this be a matter for federal government intervention?
The justification for preclearance made sense when the VRA was passed 56 years ago: to combat the abuses and actual voter suppression of the Jim Crow South. Over time, it became a political tool to keep D.C. bureaucrats in charge of voting rules in many states.
Because the VRA’s preclearance system was obsolete, the Supreme Court invalidated Section 5’s formula in Shelby County v. Holder in 2013.
Predictably, the left was outraged and declared that the Supreme Court had gutted the VRA.
The motivation for H.R. 4 is clear: to improve Democrats’ chances of winning elections.
But Section 2 of the VRA is still in force and prohibits any election procedure that denies or abridges "the right of any citizen of the United States to vote on account of race or color." In other words, it protects voting rights against actual discrimination.
Democrats know this, as they frequently successfully use Section 2 in court to attack laws protecting the integrity of elections. For example, it was used to invalidate both North Carolina’s and Texas’ voter ID laws.
The VRA is one of the Democrats’ favorite tools to attack good laws that protect the integrity of elections. Why are they so intent on "reauthorizing" it?
Without reviving the obsolete preclearance system, Democrats do not have the power to overrule state election rules they do not like. It is far easier for a D.C. bureaucrat to veto a state law through preclearance than to have to fight the law in court, and win.
H.R. 4 would resurrect the old preclearance system on steroids. Under H.R. 4, a state would be subject to preclearance requirements after "committing" a certain number of voting rights violations, including challenges that do not find discriminatory intent and when the state enters into a consent decree or settlement.
Liberal groups could file even more frivolous litigation to achieve settlements that ultimately subject states to the new preclearance requirements. Progressives will game the system under H.R. 4 to give D.C. power over any state they chose.
Additionally, H.R. 4 would shift the burden of proof, requiring states to prove the innocence of their laws, rather than the federal government to show discrimination. Injunctions would be granted if the plaintiff simply raises "a serious question" without actual evidence. This standard is unprecedented in U.S. jurisprudence. It makes a mockery of our adversarial system.
Democrats claim H.R. 4 is necessary because voter suppression has surged post-Shelby County. Yet minority turnout, especially in states previously subject to Section 5’s preclearance requirements, is the highest it has ever been! Mississippi had the second-highest black turnout in the nation at 72.8% in 2020. Where’s the suppression?
Since the VRA can still be used to fight actual voter suppression and minority turnout is surging in red states, the motivation for H.R. 4 is clear: to improve Democrats’ chances of winning elections.
John Lewis would surely have agreed that stacking the election law deck to ensure a specific partisan outcome would have been anathema to the authors of the landmark Voting Rights Act. If Democrats don’t like the results of fair elections – in which minority voter turnout has never been higher – they should run better candidates, who stand for principles more voters find attractive.