November 3, 2021 – Update: Senator Lisa Murkowski released a substitute amendment to H.R. 4. The text of the substitute is here, and LDF’s analysis of it is here.
U.S. House Majority members reintroduced the latest version of H.R. 4, The John Lewis Voting Rights Advancement Act, in a renewed effort to federalize elections. Contrary to its name, H.R. 4 seeks to advance the power of Washington’s bureaucrats over how states run elections––not voting rights.
Originally introduced in 2019, H.R. 4 attempted to reapply the coverage formula contained in Section 4(b) of the Voting Rights Act (VRA). Section 4(b) determined which jurisdictions were required to receive preclearance from the Department of Justice (DOJ) or a panel of DC judges before being able to change or implement new election procedures.
While valuable for combatting discrimination in the 1960s and 1970s, Section 4(b) of the VRA was struck down in 2013 as unconstitutional in Shelby County v. Holder due to how painfully outdated the coverage formula was. The formula arbitrarily subjected right-leaning jurisdictions––long without discriminatory laws or procedures––to preclearance, while left-leaning jurisdictions were free to carry on.
After H.R. 1, the For the People Act, resulted in another failed power-grab over elections, attention turned to H.R. 4. However, moderate members of Congress, including Senator Joe Manchin (D-WV), expressed concerns with the 2019 version and offered reasonable changes to ensure the new coverage formula would survive constitutional scrutiny and not offend principles and state sovereignty.
The Supreme Court then upheld Arizona’s common-sense election procedures in Brnovich v. DNC after activist lawyers claimed Arizona’s procedures wrongfully denied the right to vote to certain members of a protected class in violation of Section 2 of the VRA, a provision not affected by the Shelby County decision.
The controlling party ultimately renewed its efforts to strengthen Washington’s control over elections and reintroduced a new version of H.R. 4, one that goes far beyond its predecessor to establish a more extreme takeover of both election processes and judicial proceedings.
H.R. 4 (2021) Provisions
H.R. 4’s coverage formula and amendments to Section 4(b) are repeated almost verbatim from the previous version. But beyond how H.R. 4 would give Washington bureaucrats unfettered power to block and control every state’s election laws, the new version would compound this radical power-grab for how it would undermine the neutrality of the courts and explicitly upend the Supreme Court’s holding in Brnovich.
A fair and neutral judiciary is vital to an enduring democracy. However, H.R. 4 now would require a court to give substantial weight to the reliance interests of citizens challenging a procedure, rather than consider both parties’ interests equally. H.R. 4 commands courts to ignore a state’s interest in enforcing its enacted laws, offending the longstanding principle that a court serve as an unbiased, neutral arbitrator.
H.R. 4 also would uproot Justice Alito’s totality of circumstances factors from the Supreme Court’s 6-3 decision in Brnovich by barring them from a court’s consideration in vote denial claims brought under Section 2 of the VRA.
Courts would now be unable to consider invaluable factors, such as the overwhelming degree to which members of a class are not burdened by an election procedure, how long an election procedure has been lawfully and historically used, whether identical or similar election procedures are used by other jurisdictions, the availability of alternative means of voting, how the election reform will prevent crime (e.g., unlawful ballot harvesting), and, perhaps most importantly, the state’s interest in preventing fraud.
Justice Alito’s holding in Brnovich commended these factors, yet H.R. 4 would preclude courts from considering them in future vote denial claims. Instead, courts would be forced to consider an enumerated list of factors that inevitably weigh heavily in favor of the plaintiff. When partnered with the inherently watered-down burden plaintiffs would bear under H.R. 4 to prove a vote-denial claim under Section 2, the fairness of the judiciary would be nonexistent.
H.R. 4 would also do away with the Purcell Doctrine, a principle long recognized by federal courts to refrain from changing election procedures when an election is near. H.R. 4 would encourage 11th-hour litigation to change election procedures since courts would be told to ignore the proximity to the next election. Voter confidence and election integrity would suffer most under this change.
In addition to H.R. 4’s radical changes to the VRA, the ruling party is refusing to pass H.R. 4 through the regular process. This means the bill will unfortunately not be marked up in committee as Democrats seek to prevent any vital amendments that would make the bill actually about voting rights and not the Majority’s thirst for continued power.
H.R. 4 has nothing to do with voting rights and has everything to do with advancing Washington’s control over elections. Sadly, David Mayhew was right, those in power really are just “single-minded seekers of reelection.” H.R. 4 advances this goal alone, not voting rights.
To view LDF’s in-depth analysis of H.R. 4 and all that it entails, click here or download below.
Last updated November 3, 2021