Senate Markup of The For The People Act This Week; A Necessary Amendment Which Should Be Included

Supreme Court reporter Ian Milhiser makes an important point: The Supreme Court made the GOP’s new voting restrictions possible:

Thursday morning, Florida Gov. Ron DeSantis (R) signed legislation that restricts absentee voting, discourages voters from registering through voter registration campaigns, and potentially prohibits volunteers from giving food and water to voters waiting in line to cast their ballot.

Many provisions of this new Florida law mirror similar provisions in a Georgia voter suppression bill that became law last March. The Georgia law also takes aim at absentee voting, among other things, but its most troubling provision allows the state’s Republican-controlled legislature to effectively take over county election boards — boards that have the power to disqualify voters and to close polling places.

Meanwhile, Republicans in Texas are pushing legislation that would redistribute polling precincts in urban areas in ways that would make it harder for many voters to cast a ballot, and that would require local election officials to potentially purge thousands of voters from their rolls. In Arizona, Republicans have proposed an array of new hurdles that voters would have to clear to cast a ballot — all while conducting a haphazard “audit” of the 2020 electionthat appears designed to justify such laws.

All of this is possible because the Supreme Court has spent the past decade and a half dismantling safeguards against these kinds of laws. Not that long ago, these attacks on democracy would have run headlong into a skeptical judiciary. Now they are likely to be upheld.

Almost immediately after DeSantis signed Florida’s new voter suppression law, a coalition of voting rights organizations and voters represented by superstar Democratic lawyer Marc Elias filed a lawsuit challenging the new law. Several similar lawsuits challenge the Georgia law. But these suits face an uphill struggle, largely due to Supreme Court decisions dismantling various statutes and legal doctrines protecting the right to vote.

A little over a decade ago, federal statutes and well-established constitutional doctrines provided a robust shield against state laws that serve little purpose other than to restrict the right to vote. But the Supreme Court started poking holes in this shield not long after President George W. Bush appointed Chief Justice John Roberts, a longtime crusader against strong voting rights laws, and Justice Samuel Alito, the Court’s most reliable Republican partisan.

And the Court only grew more hostile to voting rights after President Donald Trump added three conservative Republicans to its bench.

States like Florida and Georgia are making in harder to vote, in other words, because they think the courts will let them get away with it. Due to some crucial decisions by the Roberts Court, they’re probably right.

Supreme Court reporter Adam Liptak adds at the New York Times, Constitutional Challenges Loom Over Proposed Voting Bill:

[P]assage of the [voting rights] bill, known as H.R. 1, would end a legislative fight and start a legal war that could dwarf the court challenges aimed at the Affordable Care Act over the past decade.

“I have no doubt that if H.R. 1 passes, we’re going to have a dozen major Supreme Court cases on different pieces of it,” said Nicholas Stephanopoulos, a law professor at Harvard.

The potential for the bill to set off a sprawling constitutional battle is largely a function of its ambitions. It would end felon disenfranchisement, require independent commissions to draw congressional districts, establish public financing for congressional candidates, order presidential candidates to disclose their tax returns, address dark money in political advertising and restructure the Federal Election Commission.

[In] March, 20 Republican state attorneys general said they were ready to litigate. “Should the act become law,” they wrote in a letter to congressional leaders, “we will seek legal remedies to protect the Constitution, the sovereignty of all states, our elections and the rights of our citizens.”

Representative John Sarbanes, Democrat of Maryland and one of the lead authors of the package, said drafters had written it with a fusillade of Republican legal challenges in mind and were confident that it would “survive the great majority of them” in the Supreme Court.

“I’m extremely comfortable that we built this to last,” Mr. Sarbanes said. “We think that the components are ones that are well girded against constitutional challenge — even by a court that we can imagine will probably start from a place of favorability to some of these challenges.”

With all due respect, there is something these analyses overlook. Congress can write this law in a way to prevent Supreme Court review. As I have previously explained, there is a constituional means for Congress to disempower the radical John Robert’s court.

Law Professor Christopher Jon Sprigman explains at The American Prospect, Stripping the Courts’ Jurisdiction (excerpt):

By enforcing constitutional rules, judicial review helps to smooth out democracy’s rough edges. But when they overturn democratically enacted laws, judges also shrink our capacity to make decisions for ourselves. And if judges overdo it, judicial review can preempt necessary democratic development. At the extreme, instead of making democratic life more decent and predictable, interventionist courts can spark long-lasting and intense conflict.

[T]he deepest threat that judicial review poses for democracy lies ahead of us. Republicans have built their recent political strategy around stocking the federal bench with right-wing partisans. And they’ve done so for a reason: Demographic change is making it increasingly difficult for the GOP to win elections, but a conservative judiciary can stand in the way of much of what Democrats and a majority of Americans hope to accomplish. The conservative Supreme Court would likely intervene, for example, to limit attempts to address global warming, to expand health care, to enforce rational public-health laws, or to tax the very wealthy. In all these cases, the Supreme Court would not be enforcing any clear text in the Constitution. It would be exercising raw power.

For any committed small-d democrat, this sort of politicized judging is unacceptable. And opposition is starting to build: We’ve seen a slew of recent court reform proposals, including judicial term limits, Supreme Court supermajority voting requirements, and, perhaps most prominently, court-packing.

In the end, though, none of these get to the heart of the problem, which isn’t that judges are too liberal or too conservative. It’s that judges are simply too powerful.

We need a deeper reform, one that the Constitution specifically authorizes. Article III of the Constitution gives Congress the power to strip federal courts’ jurisdiction: a power that can be employed to rein in politicized courts and even to override judges when they stand in the way of change that a substantial and enduring political majority wants.

How would jurisdiction-stripping work? Article III, Section 1 gives Congress complete discretion on whether to create the lower federal courts, a power that Congress has used from the founding to limit lower courts’ jurisdiction. And Article III, Section 2, Clause 2 explicitly empowers Congress to make “exceptions” to the Supreme Court’s appellate jurisdiction—that is, to pick and choose within approximately 99 percent of the Supreme Court’s total docket what cases the Court has the power to hear.

So, imagine Congress passes the John Lewis Voting Rights Advancement Act, which would put an end to a looming wave of GOP-sponsored voter suppression laws. Given the Supreme Court’s hostility to voting rights (demonstrated in cases like 2013’s Shelby County v. Holder, where a 5-4 majority of the Court struck down provisions of the 1965 Voting Rights Act), Congress would be well-advised to include in its new legislation language stripping the federal courts’ authority to review it. In so doing, Congress would be advancing its own understanding of its power to guarantee the voting rights of all Americans—and telling courts to stay out. If voters disagree, either with the federal government’s interference in states’ decisions about election rules, or with Congress’s decision to limit judicial review, they can discipline Congress in the next election.

Crucially, Congress’s power to rein in the courts through jurisdiction-stripping isn’t partisan: It can be used by Republicans as well as by Democrats. … The legitimate use of jurisdiction-stripping, by contrast, would be a way to strike a better balance between judicial review and democracy.

Senate Democrats are preparing to markup their version of the For The People Act (S. 1). I strongly urge Democrats to include an Article III, Section 2, Clause 2 jurisdiction exception to protect fundamental voting rights. Let’s disempower the radical John Robert’s court. Call your senators and tell them that you want this amendment included in this bill, and also in the John Lewis Voting Rights Advancement Act (H.R. 4).

The Washington Post reports, Democrats tweak marquee voting bill as they seek path out of Senate:

Congressional Democrats have tweaked their marquee voting-rights, campaign-finance and ethics bill ahead of a Senate committee vote [this] week, addressing concerns raised by elections administrators but forgoing a more radical rewrite of the legislation.

The changes to the For the People Act come after the bill passed the House on a largely party-line vote in March and ahead of a critical vote Tuesday in the Senate Rules and Administration Committee that could advance the legislation to the floor.

The legislation is meant to curtail state-level pushes to restrict voter access, such as the nationally controversial effort in Georgia, and President Biden, House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Charles E. Schumer (D-N.Y.) have all called the bill one of the Democratic Party’s top legislative priorities.

The For the People Act, however, presently has no viable route to enactment in the 50-50 Senate. The tweaks made Tuesday aren’t likely to change that (because of the Senate filibuster rule).

Republicans are uniformly opposed to the bill, meaning it will be unable to clear a Senate filibuster, which can be defeated only with a 60-vote supermajority. While many activists and some senators are eager to change the chamber’s rules to allow the bill to pass with a simple majority, multiple Democratic senators have expressed misgivings about doing so.

Senate Majority Leader Chuck Schumer, on the other hand, has declared that “failure is not an option.” So suck it up, scaredy cat Democrats. The very survival of America democracy is on the line. History will be your judge. Do the right thing.

It’s also not clear that all Senate Democrats are willing to vote for the bill — also known as H.R. 1 or S. 1 — even with the new amendments. Most prominently, Sen. Joe Manchin III (D-W.Va.) said in a March statement that he was wary of making changes to the election system on a partisan basis.

“We can and we must reform our federal elections together — not as Democrats and Republicans, but as Americans to restore the faith and trust in our democracy,” he said.

Ignoramus. Is he not aware of what Republicans are doing in state legislatures right now? And is he blind to his Republican congressional colleagues’ unanimous opposition to voting rights, and the radical Roberts Court dismantling of voting rights over the past 15 years? There is simply no excuse for this man’s blind ignorance.

Sen. Kyrsten Sinema is cynically trying to have it both ways. She wants credit for being a cosponsor of S. 1, but she also supports the Jim Crow relic of the Senate filibuster rule which would prevent it from ever passing. Sorry, you don’t get any credit for posturing. I’m not sure which of these two Prima Donnas I find more offensive.

Among the controversial provisions of the bill that will remain is a publicly financed system of matching funds for congressional candidates, which could also allow small donations to be multiplied six times using federal funds. That provision has fueled some of the fiercest GOP attacks on the bill, but will survive in the baseline draft taken up at Tuesday’s committee session.

What has changed are some of the requirements and timelines related to the bill’s mandates for early voting, voting by mail, automatic voter registration and voting system standards. In several cases, states or local jurisdictions will be given more time or more leeway to follow through on the bill’s mandates.

A Democratic aide involved in the revisions to the bill said the changes were made in consultation with state and local voting administrators of both parties, including groups such as the National Association of Election Officials and the National Association of Secretaries of State. The aide was not authorized to comment publicly and spoke on the condition of anonymity.

Among the latest changes is a tweak to one of the bill’s key mandates, requiring states to provide at least 15 consecutive days of early voting, with polls open at least 10 hours a day. The revisions now provide limited exemptions for jurisdictions with fewer than 3,000 registered voters, as well as those jurisdictions that mail ballots automatically to all voters.

The changes also loosen a requirement that early voting be offered on the Monday before Election Day. After some officials raised concerns about the administrative burdens, Monday voting would now become optional, though jurisdictions would still have to meet the 15-consecutive-day rule.

Several tweaks have also been made to vote-by-mail standards. Because of concerns about meeting state certification deadlines, the mandated minimum window for accepting mail ballots has been changed from 10 days after Election Day to seven days. (All late-arriving ballots must have been postmarked by Election Day.) And, while the initial bill required authorities to allow requests as late as five days before Election Day, that window has been extended to seven days.

The bill initially required states to give voters at least 10 days to “cure” suspected signature mismatches with mail ballots. The new draft says states must allow voters to cure signature mismatches until at least three days after the ballot acceptance deadline.

The revisions loosen mandates for ballot drop boxes. While the House bill required jurisdictions to offer one drop box plus an additional drop box for every 20,000 registered voters, they would have to provide one additional drop box per 45,000 registered voters in 2022 and 2024 under the Senate revisions. In future elections, jurisdictions could further reduce the number of drop boxes so long as they have at least one per 15,000 ballots cast in the previous federal election.

Also tweaked is a requirement for online ballot tracking: Rather than mandate states develop their own tool, the revised bill orders the federal Cybersecurity and Infrastructure Security Agency to develop a tool that states could use at no cost. The revisions also remove a ban on conducting voter-roll purges by mail, so long as states use other sources of information to verify that a voter is no longer living at the registered location.

In addition, the bill’s mandate requiring hundreds of state agencies to forward information on residents seeking government services for automatic voter registration has been partly delayed under the new draft. A 2023 deadline has been extended to 2025 for all but motor vehicle agencies, and motor vehicle agencies can seek a waiver of the 2023 deadline if they can show that they will be unable to meet it.

And while elections administrators must still deploy voting machines with an auditable paper trail by 2022, they will not be required to follow new national standards issued by the federal Election Assistance Commission until 2026 at the earliest.

* * *

Democrats appear intent on powering forward and, at the very least, forcing Republicans to take a vote against the broad package. Schumer has vowed to bring it to the Senate floor regardless later this year.

In a statement, the bill’s lead House sponsor, Rep. John Sarbanes (D-Md.), praised the modifications and called for swift action on the larger bill, given the approaching 2022 elections.
“Time is of the essence,” Sarbanes said. “We must advance this widely supported and transformational democracy reform package.”

Call your senators now and demand that they support the For The People Act (S.1) with a simple majority vote.