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Sen. Joe Manchin (D-WV) listens during a hearing before the Senate Appropriations Committee on “Domestic Violent Extremism in America” on May 12, 2021, in Washington, DC. | Alex Wong/Getty Images

Manchin’s idea won’t fix America’s democracy, but it could solve some pretty significant problems.

Sen. Joe Manchin (D-WV) has been an endless source of frustration for his fellow Democrats. He clings to dreams of bipartisanship that seem like fairy tales in a world where Republicans defrock their own leaders for the sin of acknowledging that President Joe Biden won the 2020 election. And his loyalty to the filibuster may doom most of his party’s legislative agenda.

Yet on Wednesday, Manchin proposed a solution to the congressional impasse over voting rights legislation that could be even more aggressive than a parallel proposal offered by Democratic leaders.

Under the Voting Rights Act, states and local governments with a history of racist voting practices were required to “preclear” new election rules with officials in Washington, DC. The idea was to catch rules that would disenfranchise voters of color before they go into effect, and block those laws before they could prevent a single voter from casting a ballot. And, while Republican support for preclearance evaporated in recent years, the Voting Rights Act had strong bipartisan support for many decades.

The Supreme Court, in a party-line vote with all of the Court’s Republicans in the majority and all of its Democrats in dissent, effectively neutralized preclearance in Shelby County v. Holder (2013). Shelby County is a major reason why Republicans in states like Arizona, Georgia, and Texas are now able to pass laws that seem to serve no purpose other than making it harder to cast a ballot.

Most congressional Democrats have rallied behind a bill, known as the John Lewis Voting Rights Advancement Act, that would restore preclearance in a handful of states, while simultaneously making it easier to impose preclearance on new states and local governments that attempt to disenfranchise racial minorities.

But Manchin suggested on Wednesday that Congress should pass a much bolder attempt to roll back Shelby County. In an interview with ABC News, Manchin proposed making the John Lewis Act apply “to all 50 states and territories.” Thus, all states, not just the handful of states with the worst record on race, would be required to submit any new voting rules to federal review in order to make sure that the new rule will not target voters of color.

The John Lewis Act is just one of two major voting rights bills that Democrats hope to enact and that many Democrats view as essential to protecting American democracy. The other bill is the For the People Act, a sweeping bill that would take on campaign finance, expand early voting, implement independent redistricting commissions, and legally force presidents and vice presidents to disclose their tax returns, among other provisions.

Realistically, however, the For the People Act’s path to passage looks increasingly slim. So Manchin’s support for the John Lewis Act suggests that restoring a robust preclearance regime may be Democrats’ best hope of enacting a significant voting rights bill this year.

Though a reinvigorated Voting Rights Act would impose some restrictions on racial gerrymandering, it’s unlikely to prevent state legislatures from drawing legislative maps that benefit their party. As Nicholas Stephanopoulos, a Harvard law professor and a leading expert on gerrymandering, said on Twitter, “almost every southern state” was able to draw gerrymandered maps in the 2010 redistricting cycle, including the ones subject to preclearance.

Preclearance also will not slay the twin dragons of the Electoral College and Senate malapportionment, which often allow Republicans to capture the White House and the Senate, even if most voters prefer to be governed by Democrats.

But Manchin’s proposal would do a great deal to stop the latest round of voter suppression laws in their tracks. And it would make the Voting Rights Act stronger than it has ever been, applying a powerful remedy that was originally applied to just a handful of states to the entire nation.

Preclearance, briefly explained

Before Shelby County, nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia — were subject to preclearance on a statewide basis, as were a smattering of counties and local townships spread across six other states.

These jurisdictions were required to submit any new voting rules to the Justice Department or to a federal court in Washington, DC. The new rule would not take effect until it had been screened either by the DOJ or the appropriate court, and it would be blocked permanently if it had either the “purpose” or the “effect of denying or abridging the right to vote on account of race or color.”

Because preclearance blocked laws that had the “effect” of abridging the right to vote for voters of color, it’s a potentially very potent safeguard against Republican-backed laws that target Democratic voters. In the 2020 election, 90 percent of African Americans and 63 percent of Latinos voted for President Biden, according to the data analysis group Catalist, and both groups preferred Democrats by even larger margins in other recent elections. So laws that seek to disenfranchise Democrats will often have a disproportionate effect on Black and Latino voters.

One of the primary benefits of preclearance is that it blocked racist election rules before they could take effect. Though voting rights plaintiffs can and do attack efforts to disenfranchise voters through ordinary litigation, courts are often very slow-moving institutions. It can take years for a plaintiff to obtain a court order blocking a racist law, and the state may have run several elections under that law before that court order takes effect.

Before Shelby County neutered one of its most effective provisions, the Voting Rights Act was one of the most potent civil rights laws in American history. In 1965, the year that President Lyndon Johnson signed the Voting Rights Act into law, less than 7 percent of eligible Black voters in Mississippi were registered to vote. Just two years after the law took effect, the Black registration rate in Mississippi was nearly 60 percent.

The leading Democratic proposal to restore preclearance, the John Lewis Act, would immediately impose preclearance on states or local governments that have committed “15 or more voting rights violations occurred in the State during the previous 25 calendar years,” or on jurisdictions with 10 or more violations, “at least one of which was committed by the State itself.”

It also strengthens another provision of the Voting Rights Act which allows new states and localities to be subjected to preclearance. Under current law, courts may order new jurisdictions to submit their election rules to preclearance if the jurisdiction engages in “violations of the fourteenth or fifteenth amendment.” That’s a fairly weak remedy, because a plaintiff typically needs to prove that lawmakers acted with racist intent in order to show a violation of these amendments.

The John Lewis Act, by contrast, allows a court to subject new jurisdictions to preclearance if those jurisdictions engage in “violations of the 14th or 15th Amendment, violations of this Act, or violations of any Federal law that prohibits discrimination in voting on the basis of race, color, or membership in a language minority group.” Among other things, this new language means that a jurisdiction could be subjected to preclearance if it enacts a law that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color,” even if the plaintiffs challenging that law cannot prove racist intent.

In any event, Manchin’s proposal would forgo this complicated process of determining which states should and should not be subject to preclearance altogether. He would simply require all states to submit new election rules to federal review.

Manchin’s proposal is more likely to survive the Supreme Court

One problem with the leading version of the John Lewis Act is that it may trigger the same concerns that led the Supreme Court’s conservative majority to strike down preclearance in Shelby County.

Shelby County did not hold that preclearance is absolutely forbidden under the Constitution. Rather, Shelby County rested on the novel proposition that “all States enjoy equal sovereignty” — a proposition that is not mentioned in the Constitution.

Preclearance, as it existed in 2013, applied “to only nine States (and several additional counties).” As Chief Justice John Roberts wrote for his Court, that meant that “while one State waits months or years and expends funds to implement a validly enacted law, its neighbor can typically put the same law into effect immediately, through the normal legislative process.”

While the Court concluded that such a departure from its newly invented prohibition on treating different states differently could be justified by “exceptional conditions” — such as the widespread voter disenfranchisement that characterized Jim Crow — Roberts wrote that the kind of “pervasive,” “flagrant,” “widespread,” and “rampant” discrimination that characterized the Jim Crow era no longer existed in 2013. Thus, Congress was not justified in imposing a burdensome regime on some states but not others.

Shelby County is a confusing decision, and it does contain some language suggesting that Congress could create a new preclearance regime that applies to only some states, so long as it decided which states should be subject to preclearance by looking to “current conditions,” rather than by looking to a more dated record of racist practices. The John Lewis Act is an attempt to update the Voting Rights Act by only imposing preclearance on states that engaged in misconduct in the past 25 years.

Maybe the Supreme Court will go for that approach — although it’s risky, considering that the current Court is significantly more conservative than the one that decided Shelby County. Manchin’s approach, by contrast, avoids this problem altogether. If Shelby County was concerned about federal laws that impose burdens on some states but not others, then Manchin would impose the exact same burden on all 50 states.

With six conservative Republicans on the Supreme Court, there’s no guarantee that Manchin’s approach would work. But it has a better shot of prevailing, given Shelby County’s focus on the “equal sovereignty” of the states.

Two big problems with Manchin’s approach

A nationwide preclearance regime would be a very big deal. It wouldn’t simply block many new attempts to disenfranchise voters; it could also weaken several existing laws seeking to prevent people from casting a ballot.

The most troubling provision of a recently enacted Georgia elections law, for example, is a provision allowing the state’s Republican-controlled legislature to effectively take over county election boards — boards that can disqualify voters and close polling places. If Georgia were subject to preclearance, however, then it could have to get federal approval before it could initiate such a takeover. And if a Republican-controlled election board tried to implement a new policy or close a particular precinct, that decision would also be subject to preclearance.

That said, in his interview with ABC News, Manchin appeared to suggest that his 50-state preclearance proposal should be enacted as an alternative to many other Democratic voting rights ideas.

The John Lewis Act is one of two major voting rights bills championed by Democratic leadership. The other is the For the People Act, a nearly 800-page bill that reads like a wish list compiled by voting rights advocates seeking to shut down nearly every single tactic that’s been deployed by state lawmakers who wish to limit the franchise.

Manchin is very cold on the For the People Act. “How in the world could you, with the tension we have right now, allow a voting bill to restructure the voting of America on a partisan line?” he asked at one point, warning that, if Congress passed a comprehensive overhaul of federal election law on a party-line vote, it could lead to more “anarchy” like the January 6 putsch at the US Capitol.

But, while the expansive For the People Act does include a number of provisions that probably aren’t necessary to preserve American democracy — the United States will most likely survive as a democratic republic, for example, if presidential candidates are not required to disclose 10 years’ worth of tax returns — it does include the Democratic Party’s most aggressive proposal to combat partisan gerrymandering. The bill would require all states to use independent redistricting commissions to draw congressional districts.

Democrats spent most of the past decade struggling to gain a foothold in the House of Representatives, in no small part due to gerrymandered congressional maps that attempted to lock them out of power. In 2012, Democratic House candidates received nearly 1.4 million more votes than their Republican counterparts, but Republicans held on to a comfortable majority in the House. In 2020, Democratic House candidates won the national popular vote by 3.1 percentage points, but they barely held on to their House majority.

If Manchin is unwilling to back anti-gerrymandering safeguards, Democrats can look forward to another decade of fighting Republican House candidates with one hand tied behind their backs. (He also shied away from support for other measures that would give more representation to Democrats, such as DC statehood.)

The second problem with Manchin’s approach is even more fundamental. He claimed in his ABC News interview that a nationwide preclearance regime could be enacted on a “bipartisan” basis, and he’s written that there’s “no circumstance” under which he’d be willing to weaken or eliminate the filibuster, which requires 60 votes to pass most legislation.

Manchin may be one of the few people on the planet who actually believe that voting rights legislation of any kind could garner 10 Republican votes in the Senate, which is what would be required to break a filibuster. It was, after all, Republicans on the Supreme Court who neutralized preclearance in Shelby County. And Senate Minority Leader Mitch McConnell recently admitted that “one hundred percent of my focus is standing up to [the Biden] administration,” which supports the For the People Act and the John Lewis Act.

There was a time when voting rights enjoyed bipartisan support. President Ronald Reagan signed an important expansion of the Voting Rights Act (over the objection of a young Justice Department lawyer named John Roberts), and President George W. Bush signed legislation that was supposed to extend the preclearance regime for another 25 years.

But the era of bipartisan support for voting rights seems to have passed. Just ask the 147 Republicans in Congress who voted to overturn the 2020 election.

In other words, Manchin will likely need to decide whether he cares more about allowing the Republican Senate minority to block legislation or about protecting voting rights.

Author: Ian Millhiser

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