State legislatures are busy revoking voting rights their citizens successfully exercised in last year’s election. Although Congress is stalled on sweeping electoral reform legislation, the current voting rights emergency should cause Congress to consider a stopgap measure to combat this frightful rollback.
What about a much narrower bill, addressing only the emergency at hand? Are there 10 Republican senators willing to support a targeted law, to constrain state legislatures from dismantling voting rights previously granted?
Here’s why they should:
First, a well-crafted law would not entirely prevent state legislatures from altering voting rules — it would just require a legislature to show sufficient justification for making the change. There could also be built-in flexibility: the greater the new impediment on the opportunity to vote, the stronger the state’s showing would need to be. The flip side, however, would be that as long as the change in state law only minimally restricts casting ballots, the state would have significant leeway.
Federal courts have been enforcing such standards for years as part of their responsibilities under the Voting Rights Act and the Constitution’s equal protection clause. They would understand how to apply this new anti-rollback decree.
For example, if a state still offered a robust period of in-person early voting, with plenty of times and places, then a state could justify a decision to curtail vote-by-mail by offering a nonpartisan explanation for why, after the pandemic is over, it would prefer to have ballots cast in person. This evaluation of adequate alternatives, to make sure states impose no danger of disenfranchisement, contrasts sharply with the approach taken by H.R. 1, which would require states to provide both in-person early voting and no-excuse vote-by-mail.
Second, the credible threat of a much more intrusive law might bring enough moderate Republicans to the bargaining table. Right now, if there’s no realistic fear that Democrats would actually eliminate the filibuster to adopt H.R. 1, there’s no reason for Republicans to negotiate. But should Democratic Sens. Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.) signal a willingness to entertain filibuster reform if Republicans remain obstinate on voting rights, then GOP senators would see it in their interest to compromise.
Third, 10 reasonable Republicans might actually be willing to support, on the merits, a suitably tailored voting rights law. Whether for the sake of their legacies, or because they believe that preservation of adequate voting opportunities is a good idea, enough GOP senators might favor a calibrated rule that prevented state legislatures from going too far but did not cause Congress to become overly intrusive.
Congress could limit this law’s applicability to federal elections, leaving states unhindered in regulating elections exclusively for state and local offices — another bargaining chip potentially attractive to conservatives.
The basic concept is what lawyers call non-retrogression. It means that the government can’t take away rights, or make matters worse, without providing a good enough reason.
Non-retrogression is the principle at the heart of Section 5, the Voting Rights Act provision that was nullified by the Supreme Court in its 2013 Shelby County v. Holder decision. The court voided that provision because Congress applied it to some states and not others, and never updated this “coverage formula” in light of new circumstances. The court did not negate the principle of non-retrogression itself.
Congress has been considering a revamped coverage formula to resurrect Section 5. While that remains worthwhile, the current emergency requires an immediate response — and one that’s national in scope.
The Voting Rights Act, designed to eradicate racial discrimination in voting, pursues the concept of non-retrogression through the lens of racial disparities. But the idea of non-retrogression can also apply to all voters regardless of race. If every voter suffers a setback in the opportunity to cast ballots, compared to how it was previously, then non-retrogression would require the state to defend that move — and to do so without considering comparative racial impact. In light of the unavoidably partisan overtones of race-based remedies in voting law, it might be strategically more prudent for Congress to craft a new non-retrogression provision in racially neutral terms.
There’s an argument that the Constitution implicitly contains this kind of non-retrogression principle, and thus federal courts already have the power to enforce it.
But a new federal statute would put the principle on firmer footing, making the judicial duty to protect voting rights unmistakably clear.
Given the speed with which state legislatures are acting, there’s no time for Congress to waste: Congress should take what steps it can to ensure that everyone who is entitled to vote can do so.
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