Your weekly source for analysis and insight from experts at the Brennan Center for Justice
The Briefing
Today, Sens. Patrick Leahy (D-VT) and Dick Durbin (D-IL) introduced the John R. Lewis Voting Rights Advancement Act. In August, the House passed its version of this critical bill to shield American voters from racial discrimination at the ballot box. The goal of the legislation is to restore the Voting Rights Act of 1965 to its full protective glory. Right now, that landmark law’s effectiveness has been undermined by two Supreme Court decisions.
In 2013, the Court gutted the law’s most powerful provision. Under Section 5, jurisdictions with a history of racial discrimination in voting had to get federal approval, or preclearance, before implementing changes to their voting policies. In Shelby County v. Holder, a majority of the Court said that the criteria for determining which jurisdictions engaged in discriminatory voting practices was outdated and didn’t reflect the racial progress the country had made. Immediately afterward, jurisdictions once covered under preclearance started to aggressively implement new restrictive voting policies.
Then this summer, the Court also made it harder to challenge discriminatory voting laws under Section 2 of the Voting Rights Act. The majority did this by setting aside decades of precedent. Rather than examining the way that centuries of discrimination interact with a particular voting policy to produce discrimination at the ballot box (as courts have done for decades), the Supreme Court instead created new “guideposts” to determine if discrimination was serious enough for judges to get involved. These guideposts are skewed in a way that makes it much harder for courts to root out voting discrimination, chalking up real burdens to “mere inconveniences.”
Despite these disastrous rulings, the Court in both instances said Congress could update and clarify Section 5 and Section 2 to root out race discrimination in voting. That’s exactly what the John Lewis Voting Rights Act does, and it couldn’t come at a more pivotal time.
This week, we updated our list of states that have enacted voting restrictions over the last year. At least 19 states have passed 33 laws in 2021 that make it harder to vote. Before Shelby, some of these states — Georgia and Texas, for example — had to clear their changes with the Justice Department or a federal judge before putting them into practice. These laws are on top of laws enacted since the Shelby decision that create layers upon layers of voting restrictions, many of which probably wouldn’t have survived preclearance. These barriers once again add up to what President Lyndon Johnson described as “ingenious discrimination” when he called on Congress to pass the Voting Rights Act of 1965.
The John Lewis Voting Rights Act is crafted to put an end to this nonsense. First, the new preclearance formula only targets jurisdictions with a current, persistent, and pervasive history of racial discrimination in voting proven by repeated violations of federal law. Second, by strengthening Section 2, the bill restores the ability of voters to challenge racially discriminatory voting practices in jurisdictions not covered by the new preclearance formula.
When the Shelby ruling came down, the late great Justice Ruth Bader Ginsburg famously wrote in dissent: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” With the John Lewis Voting Rights Act, Congress has written legislation that gives the courts an improved tool to help protect voters of color from the deluge of voter suppression laws that are now commonplace across the country.
The Senate now must do what the House already has — pass the bill. And once it clears Congress, President Biden should sign it immediately. Otherwise, our election rules will once again make a mockery of our democracy’s most sacred promise: one person, one vote.

 

Democracy
We Need the Protecting Our Democracy Act
In September, members of Congress reintroduced the Protecting Our Democracy Act, crucial legislation that strengthens ethics regulations for government officials and restores checks on presidential behavior. Former EPA chief and New Jersey governor Christine Todd Whitman and former U.S. attorney Preet Bharara, co-chairs of the Brennan Center’s National Task Force on Rule of Law & Democracy, make the case for this essential reform. “Fortifying these safeguards is essential to revitalizing and strengthening American democracy for future generations, and to ensuring that members of both parties adhere to its core ideas,” they write. // THE HILL
Election Officials as Regulators
Election officials adapted nimbly last year to conduct a safe and accurate election in the midst of political pressures and a global pandemic. Instead of celebrating officials for using their rulemaking authority flexibly and effectively, state legislatures have responded by limiting election officials’ power. “This legislative backlash against election officials is an urgent warning sign to anyone concerned about the resiliency of American democracy,” Andrew Garber and Will Wilder write. // REGULATORY REVIEW
Amendments v. Judicial Supremacy
On several occasions, the Supreme Court has produced misguided decisions that have made the American people turn to amending the Constitution for a solution. Ahead of the new Court term, Wilfred Codrington III reminds us that the Framers would not be as originalist on this issue as many would expect. “The Framers encountered an obstinate or wayward Court repeatedly and, in the most extreme cases, they opted to amend the Constitution to enshrine enduring principles and vindicate the popular will,” he writes. // ATLANTIC

 

Constitution
How to Stop Abusive National Guard Deployments
The 2022 National Defense Authorization Act, passed last week in the House, introduced major reforms that would close dangerous loopholes in permitted usages of the National Guard. From allowing local control of the District of Columbia National Guard to stopping private funding of Guard activity nationwide, these crucial reforms are essential to preventing further abuses of power. “These changes, adopted in response to events of the past year and a half, would help prevent politically driven misuses of National Guard forces,” Joseph Nunn and Elizabeth Goitein write. // READ MORE
Reining in Presidential War-Making
Members of both parties in the House and Senate have introduced legislation that would reestablish limits on presidential war powers and strengthen congressional oversight. Katherine Ebright breaks down the key provisions of the reform package. “Had these criteria been in place, it is far less likely that our engagements in Afghanistan and Iraq would have dragged on as long as they did, and our many military adventures outside those countries would have been limited to those Congress was willing to authorize,” she writes. // READ MORE

 

Coming Up
  • Wednesday, October 6 // 7–8 p.m. ET, 6–7 p.m. CT
    Join Keisha N. Blain in conversation with Donna Brazile for the launch of Blain’s new book, Until I Am Free: Fannie Lou Hamer's Enduring Message to America.
    Hamer, who came to political activism in mid-life after a forced sterilization, was a relentless advocate of voting rights for Black Americans and against white supremacy. Award-winning historian and New York Times bestselling author Blain shines a light on Hamer’s life, ideas, and political strategies, situating her as a key political thinker of the civil rights movement, alongside Martin Luther King Jr., Malcolm X, John Lewis, and Rosa Parks. RSVP today.
    Produced in partnership with the National Civil Rights Museum
  • Tuesday, October 26 // 6–7 p.m. ET
    Historical housing discrimination has created a modern-day caste system where neighborhood often determines opportunity. These discriminatory policies trap Black people in high-poverty neighborhoods and divert funding towards affluent, predominantly white areas. Does this mean social mobility is now only a myth? RSVP today.
    Produced in partnership with New York University’s John Brademas Center

 

News
  • Elizabeth Goitein on Congress’s access to private communications // CBS NEWS
  • Liz Howard on Arizona’s partisan election review // BLOOMBERG
  • Lawrence Norden on election subversion laws // USA TODAY
  • Michael Li on proposed congressional maps in Texas // NPR
  • Yurij Rudensky on the legal landscape for redistricting // YES! MAGAZINE
  • Eliza Sweren-Becker on state voting restrictions // CENTER FOR PUBLIC INTEGRITY