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What’s in the new voting bill the Senate is trying to take up

Language protecting right to vote and have votes counted could lead to an explosion of litigation

President Joe Biden speaks to reporters Thursday after attending a Senate Democratic lunch to discuss ending the filibuster to pass voting rights legislation.
President Joe Biden speaks to reporters Thursday after attending a Senate Democratic lunch to discuss ending the filibuster to pass voting rights legislation. (Tom Williams/CQ Roll Call)

House and Senate Democrats’ latest attempt to overhaul voting and elections laws covers 735 pages and tries to block states from limiting the right to vote or have votes counted, in broad language that one law professor said could spark litigation in almost every state.

The measure, a combination of other bills that remain stalled in the Senate, passed the House along party lines Thursday morning and almost simultaneously suffered a setback when Arizona Democratic Sen. Kyrsten Sinema reiterated her opposition to changing Senate filibuster rules. No Republican senator has offered to support it and many, led by Minority Leader Mitch McConnell, deride the overhaul as a power grab by Democrats.

“I don’t know that we’ll get it done, but I know one thing,” President Joe Biden said Thursday after leaving a lunch with Senate Democrats to push them on the bill. “As long as I have a breath in me, as long as I’m in the White House, as long as I’m engaged at all, I’m going to be fighting to change the way these legislatures have [been] moving.”

West Virginia Democrat Joe Manchin III largely echoed Sinema’s sentiments in a statement issued after the caucus meeting with the president.

“For those who believe that bipartisanship is impossible, we have proven them wrong. Ending the filibuster would be the easy way out,” the senator said. “I cannot support such a perilous course for this nation when elected leaders are sent to Washington to unite our country by putting politics and party aside.”

Nevertheless, Senate Majority Leader Charles E. Schumer declared Thursday night the Senate would take up the voting bill next week, and vote on whether to change rules to bring debate to an end. He had pledged to do it before Monday’s holiday honoring Martin Luther King Jr., but changed plans after one Democrat, Hawaii Sen. Brian Schatz, contracted COVID-19. Schumer cited both the pandemic and a looming winter storm in announcing in the change of schedule.

Outside activists said some provisions would transform voting and, through new campaign spending disclosure rules and limits on gerrymandering, reshape the way both parties engage in politics. Groups planned to continue their pressure campaigns, including those aimed at Sinema. 

“I think there’s space for her to move,” said Lisa Gilbert, the executive vice president of Public Citizen.

Democrats and their outside allies say the new bill, known as the Freedom to Vote: John R. Lewis Act, includes important proposals to combat voter suppression and election sabotage as well as providing new public disclosures of money spent to influence elections. The new package comes mainly from two bills, including the Freedom to Vote Act, which was itself a compromise offered by Manchin in response to a broader House bill known as the For the People Act, or HR 1. 

The other bill it takes from is the John Lewis Voting Rights Advancement Act, named for the late civil rights icon and Democratic congressman from Georgia. Those parts focus on restoring the Justice Department’s authority over election law changes in states and jurisdictions with a history of discriminatory voting practices against minorities.   

The new, combined bill would seek to put an end to partisan gerrymandering by setting specific criteria for congressional redistricting, even though both parties have engaged in partisan gerrymandering to draw new House maps this year following reapportionment after the 2020 census. 

Advocates for the bill, such as Gilbert, said that’s one of its most crucial provisions. “It will certainly impact some districts that benefit Democrats right now, but the purpose is to have fair districts,” she said.

A right to ‘have one’s vote counted’

The bill contains new language meant to curtail efforts to undo the results of an otherwise fair election, through language that guarantees the right to “have one’s vote counted in elections for federal office.”

Previous versions of the bill included language that set out a right to vote, but did not include the counting language.

Biden was especially worked up by this issue Thursday when his raised voice echoed at times through the Russell Building hallways as he spoke to reporters after meeting with Senate Democrats.

“State and legislative bodies continue to change the law not as to who can vote, [but] who gets to count the vote. Count the vote. Count the vote. Count the vote,” the president said. “It’s about electoral subversion. Not just whether or not people get to vote. Who counts the vote. That’s what it’s about. That’s what makes this so different from anything else we’ve ever done.” 

The new language would require states to have an important and specific government interest if they want to implement election changes that would substantially impair the right to vote or have the vote be counted.

And those election changes would have to be the least restrictive way of accomplishing that interest.

The bill also includes new language that would define a substantial impairment as “one that makes it more difficult to vote or have one’s vote counted,” even if the voters are able to vote and have it counted under those changes.

Wording in the original Freedom to Vote Act read, “A government may not diminish the ability to vote in an election for Federal office.” The new bill states: “A government may not diminish the ability to vote or to have one’s vote counted in an election for Federal office.”

Courts as enforcers

Derek T. Muller, a law professor at the University of Iowa, said that new language in that part of the bill would put a lot of pressure on courts to construe some of the terms, such as least restrictive means, “significantly furthering,” “important” interests, “particularized” interests and a “non-trivial impairment.”

Courts do that already under current legal standards, but with much greater flexibility, and these provisions could result in an explosion in litigation “challenging essentially every election law,” Muller tweeted.

“I think this particular provision has the potential to be *the* most disruptive of all the provisions of the bill,” Muller said on Twitter. “Rather than set election rules, it asks courts to enforce election standards.”

Like the Freedom to Vote Act, the new bill would make Election Day a holiday. 

The bill also includes provisions that would require more disclosures of political money. It would toughen prohibitions on foreign nationals’ spending on elections, including on ballot initiatives, and would require additional disclosures of the sources of money for groups that spend to influence elections.  

Jana Morgan, who leads the Declaration for American Democracy coalition, which has been pushing for the overhauls, said Thursday that the new measure kept in the “main buckets” of “protecting the freedom to vote and getting big money out of politics,” among other proposals. She was on her way to the Capitol as part of a hunger strike action over voting rights. 

“We believe there is still an opportunity here,” she said.

Niels Lesniewski contributed to this report.

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