On Capitol Hill, It’s Already 2022
Election Day, November 5, marked the end of the unprecedented 2020 election cycle, but also the beginning of the 2022 election cycle. As the outgoing president questioned the validity of the outcome of the election and civil unrest began to foment, erupting into a riot on January 6, state legislatures across the country began to propose, and enact, legislation to restrict Americans’ access to the ballot box. In reaction, Congress began to debate in earnest a sweeping measure designed to combat what Senate Majority Leader Chuck Schumer calls “the greatest contraction of voting rights since the end of reconstruction and the beginning of Jim Crow.” NYSBA is monitoring federal legislation currently being proposed, and its potential impact on redistricting, in order to advocate for the preservation of this fundamental aspect of democracy: the right to vote.
On January 4, the For the People Act was introduced in the U.S. House of Representatives as H.R.1. The nomenclature denotes the prominence the House Democratic majority ascribes to this issue. On March 3, the measure passed on a largely party-line vote of 220 – 210. This nearly 800-page bill is designed to provide a nationwide floor on election and voting requirements and prevent states from restricting voting access. States would be permitted to go further or, theoretically, jurisdictions could ignore the rules for state and local elections, but this would be difficult to implement. Democratic congressional action has been spurred by legislative proposals in state legislatures across the country. According to the Brennan Center for Justice, in the first three months of 2021, 361 bills with provisions restricting voting were introduced in 47 states. The proposed federal legislation covers such wide-ranging issues as access to the ballot, campaign finance and ethics reform. I will highlight a few below:
The bill would mandate that states do the following:
- Provide no-excuse absentee voting and same-day voter registration.
- Accept mail-in ballots up to 10 days after Election Day.
- Allow a minimum of 14 consecutive days of early voting.
- Accept a sworn statement in lieu of an ID for voting, with exceptions for some first-time voters.
- Restore voting rights to felons who have completed their sentences.
- Notify voters at least a week before an election if their polling places have changed, and order steps to reduce long lines.
The above issues have been cited by activists as key to ensuring full and robust participation in the voting process. The lack of these protections has particularly impacted traditionally marginalized voters.
The legislation also addresses money in campaigns by creating an optional system under which $6 in public funds are provided for every $1 a candidate raises from donors giving less than $200. Those funds would come from additional assessments, or surcharges, on fines already paid by tax cheats or companies fined for criminal or civil penalties.
Ethics and voting are inextricably linked politically. The bill creates new ethical requirements for those drafting the laws, those advocating for legislative changes and those adjudicating the laws: lawmakers, lobbyists and Supreme Court justices. And in a reflection of the debate over the last four years, it would require presidential and vice presidential candidates to disclose 10 years’ worth of tax returns.
The decennial census was completed last year amidst the pandemic. The results are used to determine, among other things, the number of Congressional representatives each state has in Congress. According to the recently released data, New York will lose one congressional seat, decreasing its representation in Congress from 27 to 26 House members. Therefore, congressional district lines must be redrawn in time for the 2022 mid-term elections.
Currently, states employ their own methods for determining these new districts. Under the proposed federal legislation, so-called “partisan gerrymandering” would end. The bill would require that non-partisan commissions, not state legislatures, draw the districts. The goal is to remove political influence from the most political of activities. This is no small feat and one that many states have been unwilling or unable to achieve. And not all Democrats are in support of this provision. Members of the Congressional Black Caucus worry this proposed new system could reduce their representation in Congress if it results in majority-minority districts being redrawn. While congressional leadership has reportedly tried to assure members there are adequate protections, House Homeland Security Chairman Bennie Thompson (D-MS) still voted against the measure, despite being a co-sponsor of the bill.
Like so many other measures, the real fight for this legislation will happen in the Senate. Also denoted as S.1 in the Senate, the bill faces an uphill battle. With an evenly divided Senate, Democrats need to have all of their caucus members supporting the bill, in addition to 10 Republicans, to get it over the 60-vote filibuster threshold for passage.
Designed to protect the rights of the minority in the Senate, the 60-vote filibuster rule effectively has prevented most liberal priorities from advancing in Washington, despite Democratic control of the White House and Congress, albeit by a slim majority. Interestingly, the filibuster has been used in the past to block voting rights measures such as the Civil Rights Acts of 1957 and 1964.
Will this be the bill that finally kills the filibuster? There are a few other bills that may force the issue before this, including legislation to create a bipartisan commission to investigate the January 6 Capitol uprising, a China competition measure, policing reform, and an infrastructure package. The magical 10 Republicans that would be needed to pass legislation out of the Senate remain elusive. While there are the perennial Republicans who occasionally cross the aisle to vote with their Democratic colleagues, they are not consistent and there are not 10.
Election and voting reform measures are not unique to this session of Congress. The House and Senate have debated measures over the years to address voting access, the redistricting process and to reform money in elections. Will this time be any different? Possibly. There may be a perfect storm of issues coming together that forces change: recent state legislature bills that some see as essential for curbing perceived voting irregularities and fraud and others see as modern-day Jim Crow laws; an unprecedented infusion of money into political races at the local, state and national levels; and the upcoming 2022 mid-term elections whose outcome could change political control of the Senate. But, the dark cloud of the filibuster still hangs over the process.
If the filibuster does remain in place, is there a way to still get consensus on a streamlined voting reform package? Senator Joe Manchin (D-WV) is advocating for this approach. He favors passage of the more narrowly tailored John Lewis Voting Rights bill, named in honor of the civil rights icon. This measure was introduced in response to the Supreme Court’s 2013 decision in Shelby v. Holder, which eroded key provisions that protected voters from racial discrimination and intimidation under the 1965 Voting Rights Act (VRA).The John Lewis Voting Rights bill would restore parts of the VRA, including the requirement that some jurisdictions get federal approval before changing election laws. Many Democrats support this legislation, but in tandem with H.R.1, not in lieu of the broader election and voting reform measure. The New York State Bar Association has been supportive of this bill in previous Congresses. It is important to note that broader legislation, such as H.R.1 and S.1, were not viable bills in previous years in a different political environment in Washington.
Many Democratic elected officials and activists are hoping to see legislation enacted by the end of the summer. With the 2022 midterm elections looming on the horizon, states would need time to implement these proposed sweeping changes. But, as with many political issues, debate will likely continue on in the halls of Congress and in the corridors of state legislatures for many months to come.
The New York State Bar Association is positioning itself to engage with our congressional delegation on voting issues. The right to vote is a key tenet of the Association’s mission, as well as our federal Constitution. NYSBA President T. Andrew Brown plans to appoint a task force on voting rights that will look for ways to improve access to the ballot box nationwide. Brown commended New York State for being a leader on voting rights.
“We should be a beacon of hope and a shining example of how to encourage participation in democracy, not limit it,” Brown wrote in his president’s message in this issue of The Journal. “The Association has a role to play here as well, putting the considerable expertise and experience of our members at the disposal of lawmakers who seek to protect and preserve this important tenet of our society.”
Please continue to check the NYSBA website and our Government Relations page for updates on voting and other legislative issues.