While this nation is reeling and recovering from a tumultuous election cycle, voting rights remain at the forefront of the legal and political discourse. This year, the Supreme Court is deciding two cases regarding Section 2 of the Voting Rights Act (VRA), an act passed in 1965 to end White supremacist voting laws.
These decisions should be closely monitored. After the Court gutted Section 5 of the VRA in 2013, strict voter I.D. laws quickly reappeared, voters were purged from the voting rolls, polling places were closed, and election districts were redrawn specifically to make it harder for Black communities and other communities of color to vote. Currently, the Republican party is using the cacophony of misinformation from the 2020 election cycle to further the false claim that voter fraud made the election illegitimate and gain support for stricter voting laws in forty-three states. Over fifty fraud-related lawsuits brought by President Trump and his allies were dismissed by federal courts across the country, and independent experts, governors, and state election officials say there is no widespread evidence of fraud. Instead, voting rights are under attack for purely partisan reasons; the attorney arguing that Section 2 of the VRA should be gutted openly revealed to the Supreme Court that Republicans do not want all ballots counted, not due to fraud, but because counting all votes “puts [them] at a competitive disadvantage relative to Democrats.”
If the United States wants to remain a democracy, then the American political system is in need of serious reform. While the 2020 election involved record numbers of people voting, only two-thirds of eligible voters reached the polls. The United States ranks thirtieth out of thirty-five in terms of electoral participation compared to similarly developed-nation peers. Currently, the Democracy Index labels the United States a “flawed democracy.” The fragility of our democracy is not a simulation in a game or a textbook: it has real consequences for real people. President Trump’s policies led to the death of 500,000+ Americans from COVID and thousands more due to environmental changes, health care changes, immigration changes, foreign policy changes, and execution discretion. What happened in 2020 cannot happen again, not because it was so different from our imperialistic and White supremacist past (it wasn’t), but because real lives depend on a functioning democratic system. And society reaches the best outcomes when those with the most at stake have an active voice in the structures that impact them.
No one person has all the answers. However, the United States now has a new federal administration, and with that, Congress has the realistic possibility of passing reformative laws protecting the right to vote and our democracy. Here are three substantive ways to do just that.
1. Pass the John Lewis Voting Rights Act to Fight Voter Discrimination
Signed into law in 1965 by President Johnson, the Voting Rights Act was passed to prevent state and local governments from enacting racist voting laws that denied Americans the right to vote based on race or color. However, in the 2013 case of Shelby v. Holder, the Supreme Court gutted Section 4b and 5 of the VRA. Section 5 established that states with certain histories of discriminatory voting practices (as outlined in Section 4b) could be subjected to “preclearance” by the federal government. This meant that all major voting and election systems changes needed to be approved by the Justice Department or a federal court before enactment. Justice Roberts, writing for the majority, found that because times had changed since 1965, Congress was using an outdated formula to decide which states were required to go through the preclearance process, and therefore federal oversight was no longer needed. Justice Roberts was wrong: one of the reasons there was no evidence of widespread discrimination in 2013 that was prevalent in 1965 was precisely because the VRA was working. Like Justice Ginsburg wrote in dissent, invalidating Section 4b and Section 5 of the VRA “is like throwing away your umbrella in a rainstorm because you are not getting wet.”
However, the Supreme Court left open the possibility of Congress enacting new legislation that could address voting barriers in the modern era. This is where the John Lewis Voting Rights Act comes into play. This Act would establish a new formula to determine which states and jurisdictions must obtain preclearance before making any changes to the manner in which elections are conducted. It also ensures there are practices in place for federal observers so voters can get support from the federal government if there are problems on the ground, such as voter intimidation or language barriers that make it harder to cast a vote at the polls. The John Lewis Voting Rights Act would make it harder for states to discriminate against Black and Brown voters, and as Sonia Gill from the ACLU states, would be “the first step to heal [American] democracy.”
2. Eliminate Gerrymandering
Gerrymandering is the drawing of political boundaries to favor one party. First done in 1812, gerrymandering today involves detailed schematics, with some localities even dividing the same street into different political districts. In practice, gerrymandering works by packing a party’s opponents together into very few districts and placing enough of a party’s supporters in most of the remaining districts to give that party an advantage. In the 2019 case of Rucho v. Common Cause, the Supreme Court refused to rule on gerrymandering and declared the issue a “political question” not suitable for determination in the federal courts. This implied that the power to end partisan gerrymandering lies with the legislature. Indeed, Article I, Section 4 of the Constitution explicitly authorizes Congress to alter state regulations on the “manner of holding elections for Senators and Representatives.”
I suggest two alternatives for Congress to address this issue. First, Congress could instruct states to use independent commissions to draw voting districts. Independent redistricting commissions, like the one enacted in Arizona in 2000 and in California in 2010, are shown to prevent partisan bias in district maps. The House recently passed the For the People Act (H.R. 1), which would tackle gerrymandering by requiring states to use independent citizen commissions to draw congressional districts. Unfortunately, this bill faces an uphill battle in Senate and would likely require an elimination of the Senate filibuster to pass.
Alternatively, House Representatives could fight gerrymandering by refusing to seat a state delegation achieved through excessive gerrymandering. The House has this power through Article I, Section 5 of the Constitution, which states that “each House shall be the judge of the Elections, Returns and Qualifications of its own Members.” Of course, this remains difficult to do, since those making the decisions often only have a seat at the table due to gerrymandering; nonetheless, this route remains an open possibility.
3. Let the Incarcerated Vote
Millions of people who are incarcerated cannot vote for many reasons, including felony disenfranchisement, uncertainty around who can vote, and jails having inadequate access to the polls on election day. People who are incarcerated are also disproportionately Black and Brown. The math is simple: letting incarcerated people vote would help ensure the voices of all Americans are being heard.
Enfranchising incarcerated people is crucial to saving this country. Since 1790, the federal government has counted people who are incarcerated as part of the geographic population where they are being held, but because most incarcerated folks cannot vote, many White towns in rural areas have had their population’s numbers artificially expanded. In addition, felony disenfranchisement has resulted in a phenomenon called “prison gerrymandering,” where localities draw district lines to include prisons in order to boost their district’s numbers; these same officials, however, do not have an incentive to serve the prison population’s needs since they cannot vote.
Granting felons and ex-felons the right to vote is a state-by-state decision. Currently, only two states—Maine and Vermont—allow people to vote while they are in prison. Congress can tackle this issue by passing a federal law barring the disenfranchisement of felons and ex-felons. While some may argue that this law is unlikely to be upheld in the Supreme Court, the For the People Act has already begun this process by restoring voting rights to people convicted of felonies who have completed their sentences—signaling a shift in the political narrative in favor of such a law. In addition to expanding the right to vote to felons and ex-felons, Congress should allocate federal funding to programs that increase knowledge about voting rights and run voter drives in jails, where most of those detained can vote. A more centralized approach could involve directing the Attorney General to designate a special Assistant U.S. Attorney for voting rights in prisons and jails, who can work in the Civil Rights Division of the Department of Justice and prosecute localities that are failing to ensure those in jail (and prison, if felons are granted the right to vote) are receiving proper access to the polls.
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These three suggestions are a preliminary step in protecting the right to vote. Other logistical suggestions, many incorporated within the For the People Act, include expanding early voting, allowing same-day voter registration, setting up automatic voter registration for eligible voters, and making campaign finances more transparent. Election Day should also be a federal holiday. Further, to ensure every vote is equal, the racist, inherently elitist Electoral College must be eliminated. D.C. and Puerto Rico need to be granted statehood to ensure D.C.’s 700,000 residents—fifty-four percent of whom are people of color—and Puerto Rico’s three million residents—ninety-eight percent of whom are Latino/Hispanic—are properly represented in government.
Enacting these three changes on a federal scale involves complex politicking that many folks—including myself—may fail to completely understand. But this is the first time Democrats have controlled the executive and legislative branches in eleven years. President Biden just signed an executive order expanding voting access last month. The time to act is now.
Jasjit Mundh: Executive Editor, California Law Review, Berkeley Law Class of 2021
Jasjit Mundh, Three Steps to Save The Vote, Calif. L. Rev. Online (Apr. 2021), https://www.californialawreview.org/three-steps-to-save-the-vote.