“We are grateful for Senator Durbin’s leadership in convening this hearing. The end of a Congress is indeed a good time to take stock: of progress made, of work left undone, of prospects for the future. With the imminent change in the balance of power, the end of this Congress is a particularly good time. We will restrict our comments to issues related to the right to vote in this country, though of course there are many other civil and human rights to be considered by the Subcommittee.
Lamentably, there is more to do in this area than ever. As noted in the hearing announcement, many state legislatures have passed bills in derogation of the right to vote at an alarming pace. Since the passage of the Fifteenth Amendment, the right to vote has expanded, slowly but surely—to African Americans, women, and 18-20 year olds. Expanded, that is, until the past five years, when the trend line abruptly went the other way. Though the state legislation passed in recent years has not explicitly denied the right to vote to any of these groups, the effect of many of the voting changes has been to diminish or deny their rights in more subtle ways. We will not argue here the breadth of Congress’s power to arrest the trend toward constriction of voting rights. Suffice it to say that, at least with respect to federal elections, that power is considerable, and largely unused.
A review of just some of the legislation pending before Congress right now illustrates what needs to be done—and remains undone.
- When the Supreme Court issued its decision in Shelby County v. Holder in 2013, it struck down one of the most important and useful voting protections in federal law, the preclearance of voting changes for jurisdictions with egregious records of racial discrimination in voting. Seven months later, the Voting Rights Amendment Act, S. 1945/H.R. 3899, was introduced in Congress, where it has languished all year. The Voting Rights Amendment Act is a common-sense compromise that restores preclearance, using a formula that takes account of only jurisdictions’ recent histories of legal challenges to their voting rules, rather than historical data.
- Research has shown conclusively that the disenfranchisement of former prisoners affects minority citizens much more than whites because of their overrepresentation in the prison population. (And recent events in Missouri and New York have reminded us of their disparate treatment in the criminal justice system generally.) The Democracy Restoration Act, S. 2235/ H.R.4459, has now been introduced in the 110th, 111th, 112th, and 113th Congresses and has never progressed. It would set a uniform floor for state disenfranchisement legislation, which is confusing and widely varied, so that a prisoner who has served his jail or prison time would automatically have his voting rights restored for federal elections, if the state’s law presently requires more than that. Another restoration bill, though not quite as expansive, was introduced by Senator Rand Paul (R-KY): The Civil Rights Voting Restoration Act, S. 2550.
- In January of 2014, the bipartisan Presidential Commission on Election Administration released its report, offering some simple steps that states could take to streamline and modernize our system of voting. Among the Commission’s recommendations was the provision of online voter registration to offer another method whereby citizens can register or update their information in the voter roll. (Early voting and improved access to registration were also recommended.) In September, Senator Kirsten Gillibrand (D-NY) introduced a federal bill to provide for online registration. The Voter Registration Modernization Act, S. 2865, requires states to make online registration and online updates available on an official public website and would appropriate funds to enable states to set up such a system.
- Several bills have been introduced in response to the long lines and long waits so prevalent in the 2012 election, or to make the voting process more convenient and efficient generally. The FAST Voting Act, S. 85/H.R. 97, would allow states to submit applications for federal grants to fund innovations that would simplify registration and expedite voting. The SIMPLE Voting Act, H.R. 50, would impose a 15-day early voting period, require equitable resource allocation at polling places, and prescribe standards for counting provisional ballots. The LINE Act, S. 2017, requires state remedial plans to minimize wait times. The Same Day Registration Act, S. 532, would require states to institute same day registration on Election Day and any early voting day.
- Finally, the Voter Empowerment Act of 2013, S. 123/H.R. 12, an omnibus election bill, incorporates the subject matter of many of the above bills, as well as increased attention to the challenges facing voters with disabilities, penalties for disseminating false or misleading voting information, requirements for election audits and other security-oriented safeguards, development of model poll worker training, and many other improvements.
In addition to the wealth of legislation already written and introduced, only some of which is outlined above, Congress has other duties with respect to voting rights that also merit some attention.
First, Congress has oversight responsibility for the Department of Justice (DOJ), which has authority over the National Voter Registration Act (NVRA). The Justice Department’s enforcement of the NVRA’s mandate of increased avenues for voter registration has been far from energetic. In fact, only two NVRA cases have been brought by DOJ in the almost six years of the Obama Administration. While we realize that other voting statutes have demanded a lot of attention from DOJ, Section 7 of the NVRA provides a powerful remedy for states’ failures to offer voter registration consistently and pursuant to prescribed procedures at all agencies mandated to do so. Litigation brought by nongovernmental organizations, which have stepped in to fill the gap left by DOJ’s lack of enforcement, has shown clearly that many states are not fulfilling these responsibilities to their citizens. The Justice Department’s extensive resources and its ability to file such lawsuits on behalf of the United States (without another named plaintiff) make it an indispensable partner—and it should be the leader—in enforcing the NVRA.
In addition, the NVRA requires all federal agencies, “to the greatest extent practicable, [to] cooperate with the States” in the designation of agencies that shall offer voter registration. Despite many state requests to agencies for designation, however, in the early years of this Administration, the federal agencies, with few exceptions, have remained uncooperative in this effort. Congress should use its oversight power to look into this failure as well. The Presidential Commission on Election Administration’s report prominently mentioned NVRA agency registration as a potential source of growth in voter registration numbers, which are embarrassingly low. Congress should take advantage of every opportunity to exert pressure to fulfill this potential.
The Election Assistance Commission was conceived by the Help America Vote Act of 2002 as an agency that would regulate the federal voter registration form, collect data on the conduct of elections, and report to Congress biennially on the state of America’s election system. It has operated without any Commissioners since 2011. Four Commissioners have now been nominated, and three of them voted out by the Senate Committee on Rules and Administration. Congress must expeditiously confirm these qualified nominees to ensure that the Election Assistance Commission is operating at full strength and able to meet its crucial duties in our electoral system.
Project Vote remains willing and able to provide its support and expertise as Congress tackles these important issues in the days ahead. Obviously, much work remains to be done, and we appreciate the opportunity to contribute to this hearing as a necessary first step.”
Photo by Center for American Progress via Creative Commons.