Ken Blackwell is Senior Fellow for Human Rights and Constitutional Governance at Family Research Council. This article appeared on Breitbart.com on May 27, 2021.
Democrats are pushing another federal takeover of elections with the so-called John Lewis Voting Right Advancement Act. This one is a power grab forcing states to get permission from the Democrat-controlled federal government before implementing election integrity measures like voter ID and other constitutional safeguards.
While the fate of the Corrupt Politicians Act (H.R. 1 and S. 1) remains uncertain, Democrats are positioning for Plan B to blow up the Constitution’s design of states having the primary role in elections, with Congress and the federal government having only a narrow role for issues like voting rights violations due to race.
There are two big guns in the Voting Rights Act of 1965, which was passed to enforce the Fifteenth Amendment. One is Section 2, which is a permanent nationwide ban on any state or local election laws that discriminate based on race or color.
The other was Section 5. That part said that certain parts of the country must get permission from the U.S. Department of Justice (DOJ) or the federal district court in Washington, DC before changing any of their election laws or redrawing legislative district lines after each decade’s national census.
The Supreme Court upheld preclearance in 1966, emphasizing that Congress had identified some states with the most egregious forms of systematic black voter suppression. Make no mistake here: We’re talking about fire hoses, attack dogs, beatings, and other shocking images. The justices explained that only such extreme circumstances could justify something like preclearance.
That America no longer exists. We now live in a country where black men and women are elected to statewide offices, and where a black man was elected president and a black woman is vice president.
In fact, black turnout percentages in 2012 exceeded white turnout.
It’s no surprise then that in 2013 the Supreme Court struck down part of preclearance. Specifically, the justices struck down the part of the law that determined which states must get preclearance, noting that the data in the law was from 1972 – more than four decades old.
The Court said Congress could try preclearance again only if it had data to show where in America the same kind of abhorrent suppression is going on today as went up in parts of the Deep South in the 1960s.
Instead of doing that – because no such terrible things are happening in America today – the Democrats wrote H.R. 4 in 2019, extending preclearance nationwide to any state that tries to implement election integrity laws.
That’s right: Joe Biden, Kamala Harris, Nancy Pelosi, and Chuck Schumer are saying that every state in America is as bad as the bullhorns, firehoses, and attack dogs of years past. They’re calling America a systemically racist nation.
And make no mistake: the Biden-Harris Administration would object to any state attempting to implement those commonsense safeguards. Even though the state can take the matter to court, it really puts a thumb on the scales once DOJ says that a state is violating voting rights.
What’s more, because you have to file in the liberal federal court in D.C. then go up to the liberal D.C. Circuit court on appeal, you’d probably have to get all the way to the Supreme Court to win – which can take years. Every step of the way, media pundits and activists are calling you racist for even trying.
Senate Democrats named S. 4263 – which is their version of H.R. 4 – the John Lewis Voting Rights Advancement Act, naming it after the recently deceased congressman who was one of the civil rights movement leaders in the 1960s.
So far this year, Biden, Harris, and their Democrats have been pushing H.R. 1, the complete federal takeover of elections. But not a single Republican has supported it in the House or Senate, and a key moderate, Sen. Joe Manchin (D-WV), has said so far that he is unwilling to blow up a century of Senate filibuster rules to ram through that bill.
Now Democrats are preparing to re-introduce the John Lewis bill for this current Congress. If they get it, it would give them much of what they were trying to do with H.R. 1.
One of the interesting dynamics in this shift is the outsized role that Manchin plays in it. Manchin issued a statement with moderate GOP Sen. Lisa Murkowski (R-AK) calling on Congress to pass this legislation, unlike H.R. 1/S. 1, which Murkowski opposes outright, and which Manchin expressed concern about that bill passing in its current form.
Contrast that with the deceptive John Lewis bill. Manchin and Murkowski are supporting it, though they also said that bill should pass through “regular order” – meaning the normal process with all the rules, including the filibuster rule.
So Democrats are trying to portray it as a voting rights bill instead of another attempted takeover, hoping to build public support to get a few more moderates to cave on this bill.
If a state enacts voter ID laws, then it automatically must get preclearance. This, despite the fact that polls show that a majority of black Americans support voter ID, and do a majority of Hispanics.
Same thing for redistricting. If it changes percentages of racial minorities—which happens all the time as people move around—that too puts a state under DOJ for preclearance.
Aside from these categories, this law says that if there are 10 instances of any voting problems anywhere in a state, that the whole state gets put under preclearance.
Let’s say that a single town or county in a state implemented some voting measure, and later statistics show that it impacts black voters differently than white voters. Even if no one intended to discriminate, that measure would still count as an incident to put the entire state under DOJ’s preclearance requirement.
It gets worse, though, because if a lawsuit settles, that too counts toward preclearance. If a Democrat-controlled city in a Republican-friendly state adopted a measure and gets sued by the ACLU, then the city immediately settles the lawsuit, which could count as a violation. Those of us who have worked in politics for decades can imagine some Democrat mayor talking over dinner with his ACLU buddies, cooking up something to trigger a lawsuit, then settling out of it before anyone can dig to find that the whole thing was a scam to run up the score of “violations” to force the entire GOP stronghold under DOJ’s supervision.
Lawyers are saying that this bill would be ripe for a legal challenge if it ever passed. But conservatives have been burned often enough by the Supreme Court that no one should put all their eggs in that basket.
Instead, they should oppose the deceptive John Lewis Voting Rights Advancement Act for the far-left power grab that it is.
