6 Big Moments as Senate Democrats Seek Federal Veto of State Election Laws

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Democrats continue to push for passage of a bill giving the federal government veto power over state election laws, including those requiring voter ID and regular updates of voter registration rolls. 

“Photo ID laws are not on their face invalid,” an assistant attorney general testified Wednesday before the Senate Judiciary Committee. “It really depends on where that photo ID law has been instituted.”

The Judiciary Committee heard testimony on HR 4, the legislation dubbed the John Lewis Voting Rights Advancement Act after the late Georgia congressman and civil rights icon. 

Democrats’ bill would amend the Voting Rights Act to give the Justice Department the authority to review and reject any changes in state election laws, a process referred to as preclearance. 

Under the 1965 Voting Rights Act, “preclearance” applied to states that had a history of discrimination. However, the Supreme Court ruled in the 2013 case Shelby County v. Holder that preclearance for those states no longer is necessary. The high court’s ruling left all other provisions of the Voting Rights Act in place. 

Passage of HR 4 would allow the Justice Department to overturn a state election law without making an attempt to prove it had a discriminatory effect or intent. The House passed the measure on a party-line vote in August. 

Here are key moments from the Senate hearing. 

1. Not All Voter ID ‘Unlawful’ 

As the lead witness, Assistant Attorney General for Civil Rights Kristen Clarke, a controversial appointee of President Joe Biden, advocated passage of HR 4. 

Before joining the Biden administration, Clarke was a sharp opponent of voter ID laws as a lobbyist and activist. 

At the hearing, however, Clarke seemed to take a few steps back from her previous absolutist view opposing any requirements that individuals show a specified form of photo identification before voting. 

Sen. Charles Grassley, R-Iowa, referred to recent polls, including one that found 84% of nonwhite respondents said they support voter ID, and 62% of Democrats support it. 

“How do you square prevailing public sentiment with your comments that photo ID is a burdensome proof of citizenship required, and in your words ‘a bag of tricks to suppress black votes’?” Grassley asked, referring to a 2016 op-ed Clarke wrote. 

Clarke responded that the Justice Department “does not believe that voter ID laws on their face are unlawful.”

“The department carries out its work by looking at the particular photo ID law that may have been adopted in a particular state,” Clarke said. “It looks at data with the support of experts to determine who has access to the particular forms of ID that are qualifying under a particular law. We follow the facts and apply the law.”

Clarke continued: 

Photo ID laws are not on their face invalid. It really depends on where that photo ID law has been instituted. It depends on the forum of the ID and the kinds of ID that may be permissible on that law, and whether or not there are disparities in who has access to the particular category of IDs called for by a law.

According to the National Conference of State Legislatures, 35 states have voter ID laws.

2. ‘Big Lie’ and Voting Laws

Judiciary Chairman Dick Durbin, D-Ill., said that former President Donald Trump’s allegations that the 2020 election was stolen gave new context to what he characterized as restrictive voting laws. 

“We know [about] the discrimination based on voting throughout history. It’s a horrible chapter [and] more than one chapter in our nation’s history when it comes to civil rights after the Civil War,” Durbin said. “The question today is, does it take on a different context in light of the big lie, in light of the argument of the previous president that he in fact won the last election—though there is no evidence of that—and the attempt to discredit our electoral voting process?”

Clarke did not give a direct response to the Illinois Democrat. 

“The Justice Department believes elections in our country should be open, fair, and free from fraud,” Clarke said. “We have seen that claims of fraud are exceedingly rare. Should the Justice Department encounter evidence of fraud, the department stands ready to investigate. What the Justice Department has observed is that voting discrimation is widespread. It is a current-day problem across our country, in Texas and in many other parts of the country.”

Clarke was referring to Texas’ recently enacted election reforms  that expand voter ID requirements for mail-in voting and restrict drive-through voting.  Conservative supporters of those changes view them as helping to ensure clean elections, not as “voting discrimination.”

3. Iowa, New Hampshire Presidential Contests

Grassley, who represents the state that traditionally holds the first presidential caucus, raised the issue of presidential politics. 

“I think I know the answer, that nothing in HR 4 would affect what we are jealously guarding in Iowa, both for Republicans and Democrats, to be the first-in-the-nation caucus status. But I’m going to ask it anyway. Is there anything in this bill that might impact that?” Grassley asked.

He got an unexpected answer from another witness. 

Former Virginia Attorney General Ken Cuccinelli said HR 4 is designed in a way that could affect the established political calendar for the highly anticipated Iowa caucus and the New Hampshire primary that follows it every four years. 

“Certainly the expansive reading that I would expect to see from a Biden-Harris DOJ, led by Kristen Clarke, would not simply deal with general elections. They would certainly wade into primaries,” Cuccinelli said. 

Cuccinelli, the former No. 2 official at the Department of Homeland Security in the Trump administration and now chairman of the Election Transparency Initiative, said primary elections also could be seen as discriminatory. 

“One of the complaints about Iowa and New Hampshire being early in the calendar for each of the parties is that they are more white than the nation as a whole,”  Cuccinelli said. “Under this legislation, those are two states … [that] would be subject to preclearance.”

“Outside activist groups could simply target these two states with litigation,” he added. “And the occurrence of litigation can be a basis to be brought into preclearance [by the Justice Department].” 

4. ‘Election Czar’

In his testimony, Indiana Attorney General Todd Rokita stressed that the Constitution gives states the primary role of establishing the “times, places, and manner of holding elections.”

“The simple fact is HR 4 is a power grab that erodes trust in our electoral system,” Rokita said, testifying remotely. “It would open the door to fraud by preventing commonsense safeguards, and result in chaos in 2022 and beyond.”

Rokita said partisan Justice Department bureaucrats could veto “commonsense protections” from election fraud such as voter ID laws, which were first found to be constitutional in Indiana. He said:

HR 4 seeks to flip this constitutional mandate on its head, turning the Department of Justice into a federal election czar wielding the power to challenge any new or existing election law based on the whims of the party in power and its desire to manipulate election laws to increase its chances to remain in power. The exclusivity of state power to define the time, place, and manner of holding elections means that Congress may not decide which election procedures are valid or require approval of those procedures. These changes would give the Biden administration and administrations to follow—Republican and Democrat—the power to exert considerable control over state and local election laws.

5. ‘Echo’ of Historical Discrimination

Durbin, the committee chairman, compared opposition arguments to HR 4 with the “states’ rights” arguments of segregationists who wanted to block voting rights and criticized the 1965 Voting Rights Act. 

“It seems to me to be an echo of the argument of states’ rights, which has been used historically as a justification for discrimination, or at least for the federal goverment to take its hands off state matters,” Durbin said. “It’s a recurring theme. Is there any more validity today than has been in the past?”

Jon Greenbaum, chief counsel to the Lawyers’ Committee for Civil Rights Under Law, concurred with the Illinois Democrat. 

“You're absolutely right, Senator,” Greenbaum told Durbin. “If you want to talk about the progress that was made the last several decades, actions by Congress have been a critical part of that. [Including] the Voting Rights Act of 1965, but I wouldn’t leave it there.”

Greenbaum continued:

Mr. Cuccinelli referred to the increase in voter registration. Why is that? The National Voter Registration Act, which Congress passed in 1993, enabled and put a floor and put some requirements that states had to implement with giving people increased voter registration opportunities—including being able to register to vote at driver’s license offices and public assistance offices. 

With respect to voting discrimination, which the Voting Rights Act covers, we’ve seen the void in the last eight years after Shelby County, in terms of what states have done to discriminate against voters of color. 

Greenbaum was referring to the Supreme Court’s 2013 ruling in Shelby County v. Holder that preclearance no longer was necessary for certain states identified in the Voting Rights Act. 

6. Preclearance for Other Rights?

Sen. Mike Lee, R-Utah, wanted to know what other state legislation Clarke thought should be subject to federal approval. 

“Does California have the authority, and should it have the authority, to adopt more stringent air quality standards than the federal standards in place without receiving preclearance from the United States government?” Lee asked. 

Clarke answered, “I suppose. But this is not an area I work in.”

Lee then jumped into laws that affect constitutional rights. 

“What about areas that are protected by the Bill of Rights? Suppose a state wants to pass laws dealing with COVID-19 that might have the impact of restricting religious freedom by restricting the number of people who may congregate in a church or otherwise,” Lee asked. “Should laws like that have to receive preclearance before they can be enacted by a state?”

Clarke seemed to want to stick with what she knew. 

“I’m here to talk about the right to vote, which falls to the 14th and 15th amendments and Congress has broad powers to enforce,” she said. 

Returning to the Bill of Rights, Lee followed by asking: “What about the Second Amendment? What about gun laws? Should a state be required to receive preclearance from federal officials before adopting gun restrictions?” 

Clarke responded again that she doesn’t work in that area of law. 

“I do know the right to vote is unique. It’s special,” Clarke said. “It’s something the Supreme Court has routinely said that Congress has broad enforcement powers under the 14th and 15th amendments to protect.

If a state passes an unconstitutional law, Lee said, it should be challenged in court. 

“We don’t advocate preclearance even in avenues surrounding our constitutional rights and the constitutional rights belonging to individuals,” the Utah Republican said. “If the laws passed by a state violate the Constitution, we do of course have a procedure for that.”  

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