H.R. 1 is, as our editorial noted, is a radical left-wing wish list for voting, elections, political speech, and handouts to Democrats and their causes. Progressive election-law professor Rick Hasen, in a Washington Post op-ed, concedes that the bill contains “a wish list of progressive proposals that make it unlikely to survive debate in the Senate,” as well as some that would likely be found unconstitutional by the courts. Hasen proposes a more modest list of voting and elections reforms that might stand a better chance. I offered my own list in National Review magazine. How do Hasen’s four proposals stack up?
Congress could restore a key provision of the Voting Rights Act. In 2013, the Supreme Court in Shelby County v. Holder killed the preclearance provision in Section 5 of the 1965 law that had required states with a history of discrimination in voting to get federal approval for changes in voting rules before they could make them. These states had to demonstrate that the proposed changes, such as cutbacks in days of early voting, would not make minority voters worse off. The court held in Shelby that the formula for determining which states needed to get advance clearance was outdated because it was not tied to current voting discrimination. Congress could reenact preclearance with a new coverage formula tied to current evidence of discrimination.
Given that Shelby County struck down the previous formula on the grounds that Congress had done nothing to determine whether a five-decades-old formula was still a current assessment of state racial-discrimination practices, Hasen is likely correct that a new formula based on a current evidentiary record would pass muster with the Supreme Court. But the entire preclearance project is a bad idea because it gives too much arbitrary power to the federal executive branch. And that’s before we get into the hyperbole involved in many Democratic claims of “voter suppression.” If anything, the fact that Democrats today cry “voter suppression” whenever Republicans change election laws anywhere in the country suggests that it is past time to move beyond a regionally focused approach that makes federal election law different in some states than in others. My own preferred solution, as I set forth at greater length, is simply to provide a procedural timetable to resolve court challenges well in advance of Election Day, and limit state and local officials’ power to change the rules between those deadlines and the start of voting.
Congress could require that states offer ample registration and voting opportunities to voters. For example, lawmakers could require that states offer online registration opportunities; 40 states already do, and when Texas was ordered to do so recently as part of litigation, half a million more people registered to vote. Congress could also require that states offer two weeks of some form of early voting — whether in-person, by mail or both — in all federal elections. It could even require that states offer no-excuse absentee balloting.
As with Hasen’s first proposal, this assumes away one of the very points in contention between the parties: whether these decisions should be set at the state or federal level. That said, it is more feasible for Congress to set broader general standards and leave states more leeway in how to implement them; this is what it did with some of the provisions of the major voting bills passed in 1993 and 2002. That would, however, require Democrats to compromise if they want the support of ten Senate Republicans. Online registration should be accompanied by identification requirements, and protected by registration deadlines. If federal law is to impose minimum early voting times, it should also impose maximums. There is no obvious reason why two weeks of early voting should be needed — the same people who want a month of early voting also insist that it is anti-democratic and racially discriminatory to ask voters to register as far as two weeks before the election. As I detailed in my magazine piece, if the case for more than a week of early voting turns mainly on long lines at the polling places, the better thing states can do — which Congress could potentially help with — is to ensure that localities open more and larger polling places in areas that have had chronic problems with long lines.
Congress could require states to assure election security. Lawmakers could require states only to allow voting for federal elections on machines that produce a piece of paper that can be counted in a recount, assuring that the totals announced by voting machines can be verified by hand. Congress could also require states to have certain procedures in place to protect the integrity of voter registration databases and other pieces of critical election infrastructure. These requirements are important for both to assure that election results reflect the people’s will as well as to promote public confidence.
This is the least controversial of Hasen’s suggestions, and one that almost certainly could be the basis of a bill with bipartisan support. Auditable paper trails and protections against hacking are high on the wish lists of many sectors of the Right today.
Congress could end partisan gerrymandering of congressional districts by requiring states to use bipartisan or nonpartisan commissions to draw the lines. Ending the scourge of partisanship in redistricting will not only assure that members of Congress are more representative of the will of the voters; it will also help to create the conditions where candidates appeal to the center and are less driven by partisanship.
This is a non-starter; conservatives simply do not trust unelected “nonpartisan” entities to fairly take over functions of the elected state governments, any more than they trust the federal bureaucracy. A genuinely modest approach would instead do two things. One is to provide some minimum mathematical standards for the compactness of districts — an easy standard for courts to enforce impartially. This would not be nearly as unprecedented as stripping district-drawing power entirely from state legislatures who have held that power for over two centuries. Federal law already imposes some requirements, such as drawing single-member districts rather than electing at-large slates (a rule first enacted by Congress in 1842 and restored, after a four-decade lapse, in 1967). The Supreme Court has refused to impose “compactness” requirements to prevent extremely odd-shaped districts that bear no relationship to existing city, county, or community borders, but Congress could do so; it could also exempt districts that follow the lines of some preexisting political subdivision such as a county, or that are oddly shaped because of islands or coastlines.
The other step Congress could take is to ban states entirely from considering race in the drawing of district lines. Whatever the case for using the courts and federal law to mandate the creation of “majority-minority” districts at a time when most black voters lived in one-party Democratic states in the South and could not get their voices to be heard in the political process if one-man-one-vote districts were drawn on a race-neutral basis, that simply is not true today, and the drawing of majority-black districts in particular tends to produce the worst gerrymandering abuses that disproportionately hurt Democrats while effectively ghettoizing black voters in uncompetitive districts and perversely incentivizing segregated patterns of housing. Those two simple reforms — race-neutral districts and minimal standards of compactness — would not fix the Democrats’ problem of too many of their voters being concentrated in deep-blue urban enclaves, but they would eliminate the most egregious abuses of the gerrymandering process.