Reformers have recently made significant headway on the state level to shore up voting rights, pushing back on efforts to make it harder to cast ballots. Automatic voter registration, for instance, has spread to 16 states and Washington, D.C. just since 2015. And over the past nine years, nine states enacted laws allowing sixteen or seventeen-year-olds to pre-register to vote and twelve states and Washington, D.C. have adopted same-day registration.
State-by-state reform, however, can only go so far. In GOP-controlled states, Republicans either block reform or, worse, push the boundaries of disenfranchisement.
Given this reality, action on the federal level is critical. Congress must enact legislation that cements the right to vote nationwide and ends Republican-controlled states’s ability to create barriers to the ballot box.
The federal government has wide ranging regulatory powers should it choose to use them, as University of Kentucky Law Professor Joshua Douglas explained.
“The Constitution gives states the initial authority to run Congressional elections but says that Congress may ‘make or alter’ those regulations,” Douglas said. “Congress thus has the constitutional authority to oversee how states run their elections, giving it an important oversight function that it should exercise to undo onerous voter suppression tactics and enhance our democracy.”
Perhaps the best illustration of effective federal election oversight is the Voting Rights Act of 1965 (VRA), which according to the Brennan Center for Justice, has “been among the most successful pieces of federal legislation in the history of the country.”
The VRA, in addition to barring racial discrimination in elections, gave the government pre-clearance authority over jurisdictions with a history of discrimination in voting. Any territory covered by pre-clearance has to get electoral changes approved by the federal government or the United States District Court for the District of Columbia before implementation.
But in 2013, the Supreme Court gutted the VRA by invalidating the map used to determine pre-clearance coverage. Since then, voter suppression measures have proliferated. Some states moved mere hours after the Court’s ruling to implement discriminatory policies. And earlier this year, The Brennan Center revealed jurisdictions formerly covered by pre-clearance have been purging voters from the rolls at a 40 percent higher rate than those that were not covered.
Many Democrats recognize both the opportunity and necessity to use the federal government’s powers. Indeed, the very first bill the party introduced this Congress was the For The People Act (HR 1), which includes a wish list of Democratic goals for voting rights, including nationwide requirements for same-day registration, automatic voter registration, limits on voter purges, re-enfranchisement for ex-felons, and independent redistricting commissions for Congressional elections.
With Mitch McConnell determined to kill anything promoting democracy, HR 1 will not become law any time soon. But Democrats are running to take control of both legislative branches and the White House in 2020, and will, potentially, have the power to pass, sign, and enforce a real democracy agenda.
What are they going to do with that power?
Democrats should boost federal oversight of elections by passing the provisions in HR 1 and updating the Voting Rights Act to include a new pre-clearance formula that will withstand litigation under the conservative majority at the Supreme Court.
Right now, there are two competing bills to restore the VRA, one introduced by Rep. Jim Sensenbrenner (R-WI), the other by Rep. Teri Sewell (D-AL). The latter, The Voting Right Advancement Act (VRAA), the more aggressive of the two, would apply the pre-clearance formula to all states; those that have a history of repeated voting rights violations over the past 25 years would be placed under initial pre-clearance coverage. It also allows the attorney general to designate federal observers to any jurisdiction “where there is a serious threat of racial discrimination in voting.”
Most Democratic presidential candidates have embraced these reforms in some form.
Kamala Harris, in addition to endorsing the VRAA, “basically supports all the policies” in HR 1, according to a campaign aide—though her website does not mention the For The People Act or virtually any of its policies. Mayor Pete Buttigieg has released an HR 1-style democracy plan that proclaims to use “every resource of the federal government” to ensure the right to vote, including updating the VRA and protecting voting rights on Native American lands.
Others are looking to push the boundaries even further.
Elizabeth Warren wants to implement many of the reforms in HR 1 and supports the VRAA, as well as the Native American Voting Rights Act. She has also proposed binding election security measures, uniform federal ballot design, and a new agency that, among other responsibilities, would take over election administration in states that refuse to comply with federal law. Her plan moreover seeks to incentivize election officials to follow federal guidelines in non-federal races by covering the cost of a state or locale’s elections as long as federal standards are met, with additional funds as a reward for high, diverse turnout.
Bernie Sanders is also priming to use federal powers in similar, if not more expansive, ways. In addition to supporting the VRAA, HR 1 and any mechanism that would end voter ID suppression, Sanders “believes that in several areas we have to take an even more aggressive approach in order to safeguard the legitimacy of our democracy and the right to vote,” according to Josh Orton, National Policy Director of the Sanders campaign.
Of note are two particular proposals. The first would fully abolish racist and undemocratic felon disenfranchisement laws. While most Democrats support voting rights for ex-felons, Sanders is the only candidate who wants to extend reprieve to all those currently incarcerated. This would resolve the contradiction of proclaiming a right to vote while simultaneously permitting the removal of the franchise.
The second is likely the most transformative voting proposal yet introduced, one that would end the structural barriers of voter registration once and for all. Sanders is toying with a universal voter registration system, one in which every eligible voter is registered immediately upon turning eighteen. This would completely shift the burden to register voters from individuals to the government, a welcome change.
“As president, I will implement a simple process,” the Senator explained at the 2019 NAACP presidential forum. “If you are eighteen years of age in America, you are eligible to vote, end of discussion.”
Joe Biden did not return a request for comment. His campaign website is currently vague on how he would use federal powers to regulate elections.
Ultimately, endorsing democracy reform means little without a commitment to prioritize it once elected. After all, unified control of the federal government may only last two years. Fortunately, Warren, Buttigieg, and Sanders recognize this fact.
“As president, it will be a priority for [Warren] to use every tool to protect and expand voting rights,” a Warren aide explained. Buttigieg, to his credit, has called democracy reform “job number one.” And for Sanders, “Not only would [democracy reform] be a priority of a Sanders administration,” Orton remarked, “it is fundamental to building a movement that makes all the big revolutionary changes we need possible.”
The war over voting rights has been a defining feature of our country since its founding, and there is little reason to believe this will change in the near future. But if pro-democracy forces want the upper hand, embracing a bold voting rights platform is critical. There can no longer be reticence about the need for federal oversight over elections; there is no other option and voters must be primed for the onslaught that will surely arrive once Republicans panic about the challenge to their status as minority rulers.
Adam Eichen is the Campaigns Manager for Equal Citizens and co-author of Daring Democracy: Igniting Power, Meaning, and Connection for the America We Want.