Once again, Democrats in Congress have turned their attention to election reform. Last week, Senate Majority Leader Chuck Schumer said the Senate would vote to change Senate rules (i.e., reform the filibuster) by Jan. 17 to pave the way for Democrats’ voting rights legislation.
But what exactly does that mean? Several different voting rights bills have been introduced in the three years since Democrats won the House in 2018 and made the issue a priority, so it can be hard to keep them all straight. But with the fight over election reform nearing a possible denouement — as my colleague Alex Samuels explains in more detail here — we thought it would be useful to explain exactly what is and isn’t still up for consideration.
For the People Act
First, a history lesson. In January 2019, shortly after Democrats took control of the House of Representatives for the first time since 2010, they introduced the For the People Act, a 571-page bill to reform voting procedures, campaign finance, redistricting and governmental ethics. To symbolize the bill’s importance, it was numbered House Resolution 1 — which you may know better as HR 1.
First proposed when Republicans still controlled the presidency and the Senate, the For the People Act was originally more a Democratic wish list than anything they expected would become law. But when the bill was reintroduced last year, after Democrats had gained full control of the federal government, they didn’t curtail their ambitions. Rather, they added more details to the bill, bringing it to 791 pages, including the biggest changes in decades to the way federal elections are run. Among its many provisions were those to:
- Prohibit states from requiring an excuse to vote absentee.
- Require states to mail absentee-ballot applications to all voters.
- Require states to allow voters to apply for an absentee ballot online.
- Prohibit states from requiring absentee ballots to be notarized or have witness signatures.
- Count all absentee ballots postmarked by Election Day and received within 10 days.
- Require states to offer 15 consecutive days of early voting.
- Require “to the greatest extent practicable” that polling places to keep waits under 30 minutes.
- Require states that mandate voter IDs to also accept sworn statements signed by the voter.
- Require states to allow people to register to vote on Election Day.
- Require states to allow people to register to vote online.
- Require states to offer automatic voter registration at the department of motor vehicles and other government agencies.
- Tightly restrict states’ ability to purge voters from the rolls.
- Make Election Day a national holiday.
- Make it illegal to intentionally deceive voters or mislead them into not voting.
- Restore the right to vote to people who have been convicted of a felony but are no longer in prison (including those on parole and probation).
- Implement public funding for congressional campaigns by matching every dollar a candidate raises from small donors with $6 from the government.
- Require “dark money” groups to disclose their donors.
- Create disclosure requirements for political ads on Facebook and Twitter.
- Provide funding for states to upgrade their election infrastructure.
- Establish federal standards for election equipment.
- Require the use of paper ballots.
- Establish specific redistricting criteria for fair maps and require nonpartisan redistricting commissions in every state.
- Count prisoners at their last address, instead of where they’re incarcerated, for redistricting.
- Require presidential candidates to release their tax returns.
- Bar members of Congress from sitting on corporate boards.
- Bar members of Congress from using public money to settle sexual harassment or discrimination lawsuits.
- Establish a code of ethics for Supreme Court justices.
- Shrink the Federal Election Commission from six members to five in order to avoid tie votes.
In March 2021, the House once again passed the For the People Act, with all but one Democrat voting for it (all Republicans voted against it). The bill then stalled in the Senate, however. Without at least 10 Republican supporters, it lacked the support necessary to overcome the filibuster, and Democratic Sens. Joe Manchin and Kyrsten Sinema opposed eliminating the filibuster to ensure its passage. In fact, Manchin even wound up publicly opposing the bill, saying he preferred election reform to be bipartisan. By June, the For the People Act was effectively dead.
Freedom to Vote Act
However, that wasn’t the end of Democrats’ election-reform push. This past September, a group of Democratic senators unveiled a less ambitious version of the For the People Act, branding it the Freedom to Vote Act. Notably, Manchin himself was among its original cosponsors, as he said he hoped that the bill’s scaled-back nature would attract some Republican support. (It didn’t.)
This bill, however, keeps many of the most impactful provisions of the For the People Act, such as requiring states to allow same-day voter registration and requiring the disclosure of dark-money donors, but it waters down others. For instance, the Freedom to Vote Act would not give voters an alternative to showing an ID in states with voter ID laws (although it would require those states to accept a broad and uniform range of both photo and non-photo IDs). It also would not require nonpartisan redistricting commissions (just that states adhere to nonpartisan mapping criteria) and would leave it up to states whether to participate in the public campaign-financing program.
The Freedom to Vote Act also includes some provisions that the For the People Act did not. For instance, it would block laws like Georgia’s that bar people from giving food and water to voters waiting in line. And in response to criticism that the For the People Act did not address the threat of election subversion raised by Republican state governments’ moves in 2021 to usurp the power of local election officials, the Freedom to Vote Act would:
- Allow election officials to sue if they are undeservedly removed from office.
- Increase protections against intimidating election workers.
- Increase the penalties for tampering with voting records.
- Require more records to be preserved after the election.
- Allow voters to sue if their vote is not counted.
Democrats brought the bill up for debate in the Senate in October, but with all Republicans voting against it, it was unable to overcome the filibuster. However, Democrats are able to bring it up again in the future, and that’s exactly what’s expected to happen in the next week.
John Lewis Voting Rights Advancement Act
But the Freedom to Vote Act is just one of two voting rights bills Democrats hope to pass. The other is the John Lewis Voting Rights Advancement Act, which is less about the mechanics of voting and election administration and more about preventing discrimination against voters of color.
The John Lewis VRAA, named after the late civil-rights leader, aims to restore certain protections of the Voting Rights Act of 1965 that the U.S. Supreme Court has gutted over the past decade. After the 2021 decision in Brnovich v. Democratic National Committee made it harder for plaintiffs to prove that Section 2 of the Voting Rights Act (which prohibits racial discrimination in voting) had been violated, this bill would codify new criteria that make it easier to prove that racial discrimination has occurred.
In addition, the bill would reactivate Section 5 of the Voting Rights Act, which requires certain states or local jurisdictions to gain permission, or “preclearance,” from the federal government to change their election laws. The Supreme Court’s 2013 decision in Shelby County v. Holder struck down the old list of jurisdictions covered by Section 5 (rendering it useless), but the John Lewis VRAA would require preclearance from any jurisdiction with a certain number of voting rights violations in the last 25 years, and even put the entire country under preclearance for certain major election-law changes.
The bill would also preemptively guard against the Supreme Court nullifying one of the last intact protections of the Voting Rights Act: the requirement that districts be drawn in such a way that gives minority groups the ability to elect candidates of their choice. Right now, only Supreme Court precedent determines when a district meets this requirement, but the John Lewis VRAA would enshrine it into law. Finally, the bill would require election officials to give plenty of advance warning before changing election law, require the Supreme Court to explain its reasoning in emergency election-law cases and discourage courts from using a looming election date as an excuse not to overturn a restrictive voting law.
The House passed the John Lewis VRAA along party lines in August 2021, but once again the Senate version of the bill (which differs slightly from the House version, most notably by expanding Native American voting access and protecting poll workers from intimidation) ran into problems with the filibuster. Despite the support of Republican Sen. Lisa Murkowski, a Senate vote in November to begin debate on the bill fell short of the requisite 60 votes. However, this is undoubtedly another bill that Democrats will return to if they succeed at reforming the filibuster.
Electoral Count Act reform
If, on the other hand, Democrats fail to change the Senate’s rules, both the Freedom to Vote Act and the John Lewis VRAA would be dead in the water (barring a shocking change of heart from Republicans). That could open the door to one final election reform that’s been proposed: amending the Electoral Count Act of 1887.
There’s wide agreement that the Electoral Count Act, which governs Congress’s role in certifying state electoral votes, is dangerously sloppy. (Ambiguities in its language led to the belief that former Vice President Mike Pence could reject the results of the 2020 election on Jan. 6, 2021, which fueled the deadly attack on the Capitol that day.) And crucially, at least 10 Republican senators — Susan Collins, Steve Daines, John Cornyn, Ron Johnson, Mitch McConnell, Shelley Moore Capito, Mitt Romney, John Thune, Thom Tillis and Roger Wicker — are reportedly open to fixing the law, raising the possibility that Electoral Count Act reform could actually attract enough support to overcome the filibuster.
Some of the changes being floated include clarifying that the vice president does not have the power to reject electors and increasing the number of lawmakers who must object to a state’s electors to trigger a Congress-wide vote. However, these conversations just started last week, and nothing has formally been proposed yet (although independent Sen. Angus King is reportedly working on a draft).
Some Democrats — most notably, Manchin and Sinema — are on board with this effort. But for now at least, both Schumer and the White House have refused to even consider it, likely out of fear that it would distract from, or be seen as a replacement for, passing the Freedom to Vote Act and John Lewis VRAA. As a result, observers expect Electoral Count Act reform to happen only if Democrats’ proposed changes to the filibuster fall flat and their two preferred voting rights bills are dead and buried — which could be a long time from now.