H.R. 1 Can’t Pass the Senate. But here are Some Voting Reforms that Could.

by Richard L. Hasen

Richard L. Hasen is the chancellor’s professor of law and political science at the University of California at Irvine and the author of Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy.

Are Democrats in Congress and their good government allies going to blow it again on voting rights? It sure looks like they could — by portraying the 791-page For the People Act, or H.R. 1, as the only hope to save American democracy from a new wave of Republican voter suppression.

This mammoth bill has little chance of being enacted. But a more pinpointed law, including one restoring a key part of the Voting Rights Act, could make it out of the Senate to guarantee voting rights protections for all in the 2022 and 2024 elections.

In the wake of former president Donald Trump’s relentless false attacks on the integrity of the 2020 elections, Republican lawmakers throughout the country have proposed over 250 bills to make it harder for people to register and vote. Although the sponsors tout these bills as measures to deter fraud or promote voter confidence, the history of similar laws shows that they do neither. Laws requiring people to make copies of their driver’s license to prove their identities when voting absentee, for example, prevent no appreciable amount of fraud because there is not a lot of impersonation voter fraud overall. Nonetheless, some of these state laws are likely to pass, and some will probably survive court challenges, thanks to a Supreme Court that has proved to be less protective of voting rights over time. This means that many of the gains in voting rights in the fall, prompted partly by the coronavirus pandemic, may be rolled back by the next time Americans choose members of the House, the Senate and the White House.

But Congress does have broad powers in the Constitution to set election rules and combat these new efforts at voter suppression. To begin with, Article I, Section 4 gives Congress the power to “make or alter” any state voting rules applicable to presidential elections. Congress also has the power to enforce constitutional amendments that promote voting rights, including the 14th (guaranteeing equal protection), 15th (barring race discrimination in voting), 19th (barring gender discrimination in voting), and 26th (barring age discrimination in voting). That gives it some power over the rules of purely state and local elections as well, as when Congress banned the use of literacy tests in the Voting Rights Act.`

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