Central Bucks Today

Last week, House Democrats reintroduced the latest version of H.R. 4, The John R. Lewis Voting Rights Advancement Act, in a renewed effort to federalize elections. Contrary to its name, H.R. 4 seeks to dramatically increase the power of Washington’s bureaucrats to vitiate state voting laws and procedures. Rather than protecting the voting rights of all citizens, this rushed, ill-conceived law promotes the political interests of those who believe that the Supreme Court’s decisions on state voting laws should be overturned. This law does precisely that.  

Instead of considering the bill in committee, which would be the normal process, Speaker Pelosi is rushing it through by holding one pro forma hearing today with a floor vote tomorrow. This blitzkrieg is designed to avoid debate that would expose the true nature of the bill and prevent amendments that would make the bill actually about voting rights and not Washington’s thirst for continued supervisory power over voting. It expressly shifts extraordinary additional power to the Civil Rights Division of the Department of Justice. And it also provides political trial lawyers with unlimited opportunities to tie up state voting laws with more endless lawsuits.

Originally introduced in 2019, H.R. 4 attempted to reinvigorate the preclearance coverage formula of the Voting Rights Act. The formula determined which jurisdictions were required to receive pre-approval, or “preclearance,” from the Department of Justice or a panel of D.C. judges before being able to change or implement new election procedures.  

While valuable for combatting discrimination in the 1960s and 1970s, the preclearance formula was struck down as unconstitutional by the Supreme Court in 2013 due to how painfully outdated it was. It had become a partisan blunt instrument.

Moderate members of Congress, including Democratic Sen. Joe Manchin of West Virginia, expressed concerns with the 2019 version of H.R. 4 and offered reasonable changes to ensure the new coverage formula would be non-partisan, objective, survive constitutional scrutiny, and not offend federalism principles. 

Major legislation like this needs careful planning and review; it requires consideration of unintended consequences and the real effect on the interests of all the states—and not just political parties. However, this appears to be another example of Washington rushing and jumping without planning where to land.  

Instead of heeding Sen. Manchin’s wise advice, the authors of this year’s H.R. 4 made the bill even more radical, subjective, and constitutionally suspect. It was reintroduced without any bipartisan collaboration.

And instead of being a serious effort to advance voting rights by addressing real problems, it would allow progressive activists to weaponize the courts and expand the influence of trial lawyers. The lessons of the 2020 Election were not even considered.

A fair and neutral judiciary is vital to an enduring democracy.  However, H.R. 4 now would undermine the neutrality of the courts by essentially telling the courts to rule for plaintiffs challenging election laws. A court would be required to give substantial weight to the reliance interests of citizens challenging a procedure, rather than consider both parties’ interests equally.  H.R. 4 commands courts to ignore a state’s interest in enforcing its enacted laws, offending the longstanding principle that a court serve as an unbiased, neutral arbitrator.

Under H.R. 4, courts would be unable to consider common-sense factors that have been outlined by the Supreme Court, such as the overwhelming degree to which members of a class are not burdened by an election procedure, how long an election procedure has been lawfully and historically used, whether identical or similar election procedures are used by other jurisdictions, the availability of alternative means of voting, how the election reform will prevent crime, and the state’s interest in preventing fraud.

Instead, courts would be forced to consider factors that weigh heavily in favor of the plaintiff while plaintiffs would have a watered-down burden of proof to show a violation of the law.

H.R. 4 would also do away with the Supreme Court’s Purcell Doctrine, a principle that prevents federal courts from changing election procedures when an election is near, to avoid confusing voters. H.R. 4 would encourage 11th-hour litigation to change election procedures, undermining voter confidence and creating expensive administrative problems for hardworking election officials. This bill seems to have been drafted to advance a progressive 2022 and 2024 re-election strategy, not to advance the long promised election integrity agenda.

Taken together, it is clear that the goal of the new H.R. 4 is not to protect voting rights but rather to allow activists to overrule any voting procedures they do not like by equating any inconvenience to an individual voter with voter suppression and destroying the fairness of the judiciary along the way.

The new H.R. 4 advances Washington’s and activist lawyers’ control over elections. Sadly, political scientist David Mayhew was right when he said that those in power really are just “single-minded seekers of reelection.” 

Tom Spencer is the vice president of Lawyers Democracy Fund