Category Archives: legislation and legislatures

Carolyn Shapiro: The “Independent State Legislature Doctrine” is an Affront to State Constitutions and State Courts

Carolyn Shapiro at Slogblog:

The ISLD is problematic for numerous reasons, but one that Judge Sutton might appreciate is that the doctrine, at least in its most extreme forms, is deeply contemptuous, even destructive, of a legal and political culture that takes state constitutions – and state courts – seriously. Many state constitutions have “free elections” clauses. In Arizona, for example, Article 2, section 21 of the state constitution reads: “All elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” In New Hampshire, Part I, Article 11 of the constitution states: “All elections are to be free, and every inhabitant of the state of 18 years and upwards shall have an equal right to vote in any election.” There is no federal counterpart to these clauses.

And as Judge Sutton would expect, different state courts have interpreted and applied their free elections clauses differently. In 2014, for example, a Pennsylvania court declared a voter ID law unconstitutional under that state’s version of the clause because the statute failed to provide a “non-burdensome means of obtaining compliant photo ID.” The free elections clause also played a role in the Pennsylvania court’s ruling on gerrymandering. On the other hand, otherstate courts have upheld their voter ID laws against similar state constitutional challenges.

A maximalist ISLD, however, might suggest that a Pennsylvania constitutional holding cannot apply to federal elections. Indeed, the Republican party so argued in 2020 when it asked the U.S. Supreme Court to reverse a different Pennsylvania Supreme Court case related to absentee ballots. Leaving aside the merits of voter ID laws themselves and the administrative challenges of different requirements for state and federal elections, there would be consequences to this approach that should concern anyone interested in the development of state constitutional law.

For one thing, a state court might be more reluctant to find robust state constitutional protections, or to rely on constitutional avoidance when construing election laws, if doing so could lead to a two-tiered voting system. In other words, the ISLD could have a chilling effect on the state courts’ evaluation of their own laws and constitutional provisions. And as Judge Sutton has suggested, that chilling effect could implicate the development of federal constitutional law as well.

Second, this maximalist ISLD could well send voters a message of no confidence in their state courts….

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ELB Book Corner: Victoria Nourse: “What Impeachment Teaches Us About How Lawyers Misread the Constitution”

I am pleased to welcome to ELB Book Corner Victoria Nourse, writing about her new book, Impeachments of Donald Trump: An Introduction to Constitutional Interpretation (West 2021). Here is the third of three posts:

ELB Book Corner

Ask the public if impeachment is important, and they will say “yes.”   Ask a constitutionalist whether they teach it, and they will say “no.”   Why the disconnect?   In part this reflects a simple problem:  constitutional law teaching in many law classrooms is not really about the constitution. 

Yes, you heard me.   Constitutional law teaching is not about the constitution.  It is about the Supreme Court.  And the Supreme Court is only one part of our constitution, arguably the least important institution.  This is rather easy to prove.   Abolish the Court’s power of judicial review of federal legislation, a core part of the teaching of constitutional law.  What happens?    Democracy easily survives.   Congress and the President live; state governments live.  The republic lives, just as it does in other countries where there is no judicial review.   Now compare this with getting rid of elections.   If we eliminate elections, we have no republic and no institutions, no Congress or Presidency.   End of story.   Democracy dies.

 The constitution was created to empower self-governance, not to create courts.  So, if you care about democracy, constitutionalists (and everyone else interested in government) should confront this problem.   No one doubts that presidential impeachment is a big deal in a democracy.  And, yet, it fits poorly in the conventional constitutional law syllabus which is mostly about judicial decision.   The judiciary has declared that impeachments are outside their bailiwick by deeming them “political” questions.   Out of judicial view, out of the con law syllabus.

 Teaching impeachment can be an antidote to this court-centered approach to the constitution.   One might even start a course with impeachment because it is both timely and it is about everything but courts.   Impeachment puts elections and representative institutions at the center of the Constitution, where they should be, and the center of the separation of powers. One cannot think of impeachment without understanding that the constitution creates two great governing institutions:  the Congress and the Presidency.  The Constitution after all begins with Article I and Article II.  As Matt Stephenson and Jide Nzelibe have written, the system we know as the separation of powers is a system built for voters.  And, as I wrote decades ago, this voter-based system means that constitutional power is really as much about the power of particular groups of constituents to make decisions as about particular adjectives like executive, legislative, and judicial.  

How can students come to understand this?   Well, consider the argument made by every President defending against impeachment:  don’t impeach, let the people decide in the next election.    The problem with the wait-until-the-election argument is that the people are deciding in an impeachment.   The House and Senate represent a different set of geographies, but when united they represent the people and have greater legitimacy than the President who rules from afar and may be elected by a minority of citizens through the electoral college.   So, House and Senate members were right to ignore Trump’s pleas that the impeachment was somehow “wrong” because the people were being cut out.   Impeachment only happens because of the people’s representatives.   Just add up the populations represented by the members who voted for the Articles and the Senators who voted to impeach.

 Of course, this resists the instinct for the constitutional capillary that focuses on the precise texts of the impeachment clauses.   Those are necessary, but entirely insufficient, to explain what goes on in an impeachment.   Impeachments are powered by our collective electoral institutions.   Law has for too long had a contempt for these institutions as if all that is “political” is bad.   As I write in the book, beware the term “political.”  It is full of so much meaning, it means nothing, ranging from democracy to party to raw selfishness.  Constitutionalists need to stop teaching contempt for the constitution as a whole.  Try impeachment:  the students might learn something about the importance of elections to democracy.

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Lawsuits challenge non-citizen voting in two Vermont cities

Earlier this year, the Vermont legislature overrode the governor’s veto and enacted statutes authorizing the cities of Montpelier and Winooski to allow non-citizens to vote in local elections. (For more background, see National Review.)

The Republican National Committee is now leading a pair of lawsuits challenging the laws. The complaints in Ferry v. Montpelier and Weston v. Winooski identify Section 42 of the Vermont Constitution, which provides, in part, “Every person of the full age of eighteen years who is a citizen of the United States, having resided in this State for the period established by the General Assembly and who is of a quiet and peaceable behavior, and will take the following oath or affirmation, shall be entitled to all the privileges of a voter of this state . . . .”

Professor Peter Teachout at Vermont Law School has argued this provision does not extend to elections in municipalities. The complaints offer a different construction of state law, distinguishing the constitutional right to vote and the “local” elections that ran with property owners in the 19th century (which might have included non-citizens), a distinction that no longer exists in the contemporary era.

Non-citizen voting at the local level has been percolating in recent years, so these lawsuits are ones to watch.

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ELB Book Corner: Victoria Nourse: “Impeachment and Constitutional Argument”

I am pleased to welcome to ELB Book Corner Victoria Nourse, writing about her new book, The Impeachments of Donald Trump: An Introduction to Constitutional Interpretation (West 2021). Here is the second of three posts:

ELB Book Corner

In his book on Impeachment: A Citizen’s Guide, Cass Sunstein claims that he never heard a word about impeachment when he was a law student.  No doubt that is true of many constitutional law classes today.   I wrote The Impeachments of Donald Trump with that in mind.   I wrote it so that it could be used in constitutional law classes or classes on democracy.

The book provides an easy resource for academics and students on the key facts and arguments deployed in the Trump Impeachments, much like the book done by Karlan, Pildes and Isacharoff on the nation-grabbing electoral events in Bush v. Gore.  As I said in my last post, I wanted to give witness to an extraordinary assault on our system of government at its most basic electoral foundation.   An impeachment is a living demonstration of the separation of powers in action, far more powerful than any arcane case on presidential removal now littering casebooks on constitutional structure.  Presidential power and congressional oversight, not to mention elections, deserve their time in the constitutional sunshine.

            Then why does the book refer to “constitutional argument?”  Many will find this strange.  Congress and constitutional argument?  Haha.  Those fools know nothing of the constitution.  The impeachment’s record belies this conventional rejoinder by law professors enamored with judicial supremacy.  Remember, Rep. Jamie Raskin, the lead House manager for the Second Impeachment, actually did teach constitutional law!  The truth is that liberal and conservatives’ contempt for Congress is anti-constitutional, anti-democratic, anti-republican (since we actually have a republic), and self-fulfilling.   If you have contempt for people, they will be contemptible.

            Focusing on the way that lawyers argue helps me make three points. 

First, pushing back on so-called originalism or textualism.  My own view is that these are “theory facades,” that obscure legal reasoning, and I write a great deal about that.  The impeachment supports my claims.  Even Trump, who put so many originalist and textualist Justices on the Supreme Court, had lawyers who did not stop at 1787 or text; his lawyers went on to make arguments based on precedent, policy and consequences. 

Second, adding my name to the work of those like David Currie who have written about Congress’s constitutional arguments by taking them seriously, rather than scoffing at them.  I am one of approximately 2 percent of law professors who have actually worked in Congress and in the White House.  All constitutional argument is “political” in some sense of the word.   The truth is that constitutional argument in America is infused within all the branches, making them all the better for internalizing some attention to the rule of law.

Third, luring constitutionalists, or those teaching about democracy, even those teaching pre-law, to use the book.  In law schools, constitutionalists all teach some version of constitutional argument, many through cases like Marbury v. Madison which are incomprehensible to first year students.  Why not make the modalities of constitutional argument fun?  Set the forms of argument in an important, real-life, setting?   Even if one teaches against these “forms” or argument, why not try to get to understand what those lawyers are doing?

Members must learn to translate complex legal issues into terms that normal people understand.   That makes the arguments easier for students to understand.  To be sure, as I explain in some detail, when members of Congress argue about the constitution, their own interests will bend their arguments toward Congress’s interests and their political advantage.   But is that really so different from the most salient cases in the Supreme Court, which Andrew Coan and Michael Bailey have shown, are often bent to institutional advantage or political preference?   The political pressures are of course more salient in representative institutions, but it should be of interest that the lawyers in the Impeachments chose not to argue as politicians do: They did not confuse polls for text, or list interest groups and supporters as if that were a conclusion.   They used the conventional legal modalities we teach law students.

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ELB Book Corner: Victoria Nourse: “Did the Trump Impeachments Matter? My View: Never Forget.”


I am pleased to welcome to ELB Book Corner Victoria Nourse, writing about her new book, The Impeachments of Donald Trump: An Introduction to Constitutional Interpretation (West 2021). Here is her first of three posts:

ELB Book Corner

I was unexpectedly conversing at the French Ambassador’s residence last week (not exactly a habit), when one of the participants dismissed American “impeachment” as a failure.  Having just finished what may be the first-ever casebook on the subject, The Impeachments of Donald Trump, I bristled.   Trump’s insurrection was the closest the country has ever come to a coup.  We should never forget. 

I wrote The Impeachments of Donald Trump because it bears witness to one of the most horrific events in the life of American democracy. I wanted people—pre-lawyers, political scientists, law professors and citizens—not to forget.   And if you think impeachment is a constitutional failure, you will simply put it all in the failure drawer and forget it.  

Here’s why the failure theory is wrong:  presidential impeachment is part of a larger electoral system.   It operates like a democratic “fire alarm” or perhaps, in Trump’s case, like a constitutional “primal scream.”  Impeachments are high-powered media events engaging an otherwise disengaged electorate.  We are in danger!   Democracy in peril! Coup around the corner! That, in turn, shapes presidential elections.   From that perspective, the electoral informing function of impeachment the Trump Impeachments cannot be denominated a failure.   More people voted in 2020 than had ever voted in a presidential election in American history.  Donald Trump lost the 2020 election.   And his actions inspiring an insurrection proved the The First Impeachment managers warnings—he will do it again–were right.

To be sure, many wish that Trump had been barred from future office. But that would not have stopped him from holding rallies or spreading disinformation or claiming election fraud.  Removal by impeachment is always something of a fantasy.  Impeachment is an extreme form of congressional oversight.  Hearings and a trial before the next election can focus the collective public on democratic danger.  But no one should ever think that removal is likely.  Read the rules.  It takes a 2/3 vote in the Senate.  That may just seem like a number, but if you have ever worked in the Senate (as I have), where 60 votes are the rule, you know 2/3 requires super-bipartisan support.   Even in the worst cases, like Trump or his evil 19th century twin, Andrew Johnson, removal is entirely unlikely—whoever is impeached and for what.   My point:  the rules tell us that the process is as important as the result

Impeachment only happens if the entire Congress stops and calls on the nation to listen. Think of the electoral incentives of those who control impeachment. Only when extreme fear motivates a wide spectrum of the public is the House ever likely to vote for Impeachment Articles.  The impeachment of Bill Clinton is the exception that proves this rule.  We know how that went:  it burned those who pushed impeachment because personal conduct, however problematic, does not imperil a nation.  The country’s fear level must be palpable enough so that it is just as important for representatives to stop everything they are doing to impeach as to tend to their constituents’ business by legislating.   The Members must feel that they can explain to their voters why they had to impeach.

This is what my book calls the “political safeguards” of impeachment, which explains the tiny absolute number of presidential impeachment Articles voted by the House and the tiny number of impeachment trials of Presidents in the Senate (4 over 200 plus years).  Numbers and what David Mayhew called the ”electoral connection,” go a long way to explaining the simple fact that presidential impeachment is a deservedly rare bird.   But its rarity is its power.  Only if unusual would it create a media frenzy, arousing the dormant public to democracy’s scream.   Only if a last resort, would it bear witness to grave dangers that history should not forget.  And, as we know from many of our most grave errors, from genocides to slavery, bearing witness is often the best and most important task at hand.   That is what Congress did in the Impeachments of Donald Trump. 

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Minimal disruption in Iowa redistricting plan despite delayed Census data

The Iowa Constitution requires the legislature to enact redistricting maps by September 15. That date will come and go given the delayed release of Census data. The first map from Iowa’s nonpartisan Legislative Services Agency (unique and widely praised) comes out September 16, among the earliest releases from the states, which it then submits to the legislature.

In April, the Iowa Supreme Court issued a cryptic and “tentative” but not “legally binding” press release about what might happen if the September 15 deadline could not be met. The state constitution requires that “the supreme court shall cause the state to be apportioned.” It’s an awkward phrase, but read in conjunction with the next paragraph of the state constitution, which requires the court to “adopt or cause to be adopted an apportionment plan” if the apportion is unconstitutional, it means that the Iowa Supreme Court plays an indirect role. The April release suggested that the Court would extend the deadline for the legislature to act according to its existing responsibility, which would “cause the state to be apportioned.”

Today, the Court issued an order doing just that. The deadline has been extended to December 1, with the legislature permitted to enact a law pursuant to the Iowa Code. Governor Kim Reynolds has called the legislature into a special session October 5 to consider the first maps from the LSA, again consistent with the Iowa Code.

It’s a simple, straightforward solution that allows the ordinary process to play out, albeit on an extended timeline. And it preserves the respective roles of the LSA, the legislature, and the courts–the LSA drafts the maps, the legislature approves or disapproves them (and might ultimately amend the maps), and the court steps in to review the plans only at the end.

As other states wrangle with how to handle redistricting on an expedited basis, it’s encouraging to see little drama and a strong rule-of-law bent here in the Hawkeye State. Let’s hope other states follow suit.

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Why Governing is Also a Path to Restoring Our Democracy

Senator Klobuchar summarized the Build Back Better plan on Twitter, “Millions of good-paying jobs. New roads and bridges. Broadband access for everyone. Lower costs for childcare, elder care, and community college. We’re going to get this bill to the President’s desk. That’s how we build back better.” She might have added, “This is also how we build back faith in American democracy.”

Passing government programs that address the needs of everyday Americans is itself an important part of the process of restoring both faith in our democratic institutions and functionality to our democratic processes. The basic lesson of the so-called policy feedback literature is that the choices we make in how we govern the economy, health, and education can either reverse or reinforce inequities in civic and political capacity. 

As Pete Buttigieg remarked awhile back, “a lot of the mistrust in our country right now is the result of policy failure. And that policy failure is largely about a generation of intentional disinvestment in the things that we share and need together.” He is right.  Policymaking has second-order effects on citizens’ attitudes about, and relations to, democracy—effects that can either instill civic and political engagement or breed endemic apathy. The specific direction of the policy feedback depends not only on the generosity and universality of those policies, but also on their visibility and the efficiency of their implementation.

Laws regulating election procedures are not the only, or even the most important, influences on enhancing political participation, fostering political capacity, or restoring faith in our democratic institutions. A government that gets things done for its people, and broadcasts clearly when it has done so, is another. Thus, while today’s announcement that a group of Democratic Senators, including Amy Klobuchar, have a new, paired down voting rights bill is promising, we should all note that the Build Back Better plan is itself a “democracy-reform” package—an opportunity to demonstrate policy responsiveness and an important step toward restoring faith in our democratic institutions.

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“Are Censures of Politicians a Form of Free Speech or a Threat to It?”

Adam Liptak in the NYT:

Last summer, the City Council in River Falls, Wis., censured a member for calling an opponent of wearing masks during the coronavirus pandemic “a rancid tub of ignorant contagion.”

A few days later and a hundred miles away, the City Council in St. Cloud, Minn., censured one of its own for saying mask mandates were like requiring that “Covid-positive people wear some sort of identification badge, maybe like a bright yellow star.”

Censures, which are formal reprimands and a kind of punishment, seem to be on the rise in these divisive times. The Supreme Court will hear arguments this fall on whether the First Amendment has anything to say about when elected bodies can impose them on their members.

The justices will have to decide whether censures condemning politicians’ statements are a threat to free speech that chills expression or a form of free speech responding to one set of views with another.

The case before the justices was brought by David Wilson, a former elected trustee of the Houston Community College System and an energetic critic of its work. In addition to airing his concerns in interviews and on a website, Mr. Wilson sued the system’s board, orchestrated robocalls and hired private investigators to look into whether another trustee had lied about where she lived.

He was, a federal appeals court judge wrote in a dissent, a “gadfly legislator.”

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Must-Read Michael Wines: “As Washington Stews, State Legislatures Increasingly Shape American Politics; From voting rights to the culture wars, state legislatures controlled by Republicans are playing a role well beyond their own state borders”

NYT:

With the release of the 2020 census last month, the drawing of legislative districts that could in large part determine control of Congress for the next decade heads to the nation’s state legislatures, the heart of Republican political power.

Increasingly, state legislatures, especially in 30 Republican-controlled states, have seized an outsize role for themselves, pressing conservative agendas on voting, Covid-19 and the culture wars that are amplifying partisan splits and shaping policy well beyond their own borders.

Indeed, for a party out of power in Washington, state legislatures have become enormous sources of leverage and influence. That is especially true for rural conservatives who largely control the legislatures in key states like Wisconsin, Texas and Georgia and could now lock in a strong Republican tilt in Congress and cement their own power for the next decade. The Texas Legislature’s pending approval of new restrictions on voting is but the latest example.

“This is in many ways genuinely new, because of the breadth and scope of what’s happening,” said Donald F. Kettl, a scholar of state governance at the University of Texas at Austin. “But more fundamentally, the real point of the spear of Trumpism is appearing at the state and local level. State legislatures not only are keeping the flame alive, but nurturing and growing it.”

He added that the aggressive role played by Republican legislatures had much further to run.

“There’s all this talk of whether or not Republicans are a party that has any future at this point,” he said, “but the reality is that Republicans not only are alive and well, but living in the state legislatures. And they’re going to be pushing more of this forward.”

The next battle, already underway in many states, is over the drawing of congressional and state legislative districts. Republicans control 26 of the legislatures that will draw political maps, compared with 13 for Democrats. (Other states have nonpartisan commissions that draw legislative districts, or have just one seat.)

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“Nearly a dozen new state laws shift power over elections to partisan entities”

ABC News.

I think there’s an important part missing in the headline: “shift power over elections from partisan entities to partisan entities.” (At least in most cases.) A law shifting power from the (partisan) Secretary of State to the (partisan) Attorney General, or a law shifting power from the (partisan) executive to the (partisan) legislature, seems to miss the more important question about which institution we think is better–or which we think is less inclined act in a “partisan” (in the negative sense) manner. For instance, if a Secretary of State repeatedly refuses to defend a state’s election laws in court, shifting responsibility to the Attorney General seems sensible–if entirely consistent with existing partisan alignment in the state, of course. (But, that’s my take. And I do think legislatures have advantages and disadvantages over executives–and many more disadvantages during, say, a time of pandemic or other emergency.)

Justin Levitt’s great thoughts on “the partisanship spectrum” are useful to consider about how we think about the term “partisan.”

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“Pelosi says the House will raise the maximum annual pay rate for Capitol Hill aides”

New York Times:

Speaker Nancy Pelosi announced on Thursday that the House would raise the maximum annual pay rate for Capitol Hill aides, in a long-awaited move intended to help recruit and retain congressional staffers.

In a letter to lawmakers, Ms. Pelosi said that House aides could now earn up to $199,300 in an effort to shore up “the outstanding and diverse talent that we need.” The change marks the first time that a congressional aide can receive a salary greater than a lawmaker: An average member of Congress receives an annual salary of $174,000.

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“No evidence that national conservative group Heritage Action lobbied for Iowa election law, ethics board says”

Following up on a May report, details at the Des Moines Register:

An Iowa ethics board has found no evidence that a national conservative organization illegally lobbied for an election law that cut the amount of time residents have to vote.

The Iowa Ethics and Campaign Disclosure Board opened an investigation into Heritage Action in May after video surfaced of the group’s executive director, Jessica Anderson, claiming credit for writing parts of the Iowa law.

The board, which oversees lobbying of state executive branch officials, voted unanimously Thursday to close the investigation.

“Our staff found no evidence at all of Heritage Action lobbying the governor’s office or the secretary of state’s office or any other executive branch agency,” said Board Chair James Albert, a Republican.

Anderson claimed in the video that “we worked quietly with the Iowa state Legislature” to pass the law, and that three provisions in the law “were directly written by the Heritage recommendation.”

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“Dems plot last-ditch voting rights push as midterm clock ticks”

Politico:

Nancy Pelosi and Chuck Schumer are preparing to take one more big swing at voting rights. They may end up hitting their base with a huge letdown.

The House will return to Washington later this month to vote on updated legislation to restore key provisions of the Voting Rights Act that the Supreme Court struck down in 2013. Across the Capitol, a small group of Democratic senators are closing in on a compromise on separate but related set of more immediate voting reforms they think could unify the party, if not get any new Republican votes.

But for either effort to bear real fruit, a huge shift would have to take place — one that some in the party fear could be impossible: Convincing Sens. Joe Manchin (W.Va.), Kyrsten Sinema (Ariz.) and other Democratic moderates to back a change to Senate rules.

Schumer hasn’t shown his hand on any potential changes to the filibuster that’s currently stymieing the party’s elections bills, saying only that “everything is on the table.” But in an interview Wednesday, the Senate majority leader said he remains hopeful Congress can act on voting rights.

And at the New York Times, “As Congress Recesses, Democratic Successes Do Not Include Voting Rights”

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“Democrats Reboot Stalled Election-Law Push”

A couple of details from the Wall Street Journal:

Senate Rules Committee Chairwoman Amy Klobuchar (D., Minn.) met on Thursday with other Democrats including Sen. Joe Manchin (D., W.Va.) to iron out some remaining sticking points.

The Democrats have agreed to narrow the bill, with an emphasis on voting procedures, and scale back their sweeping elections and ethics measure known as the “For the People Act,” which touches on everything from how districts are drawn to how campaigns are financed and how ballots may be cast.

“We’re making good progress,” Sen. Raphael Warnock (D., Ga.), who is involved in negotiations, said on Thursday night. “We still have some distance to go.”

. . .

In seeking to find common ground, Democrats have tangled over requirements to show identification when voting. Currently, 36 states have laws requesting or requiring voters to show some form of identification when voting, according to the National Conference of State Legislatures. The “For the People Act,” a version of which passed the House in March, would loosen identification requirements by allowing voters to attest to his or her identity through a signature instead of showing ID.

Many Democrats say voter ID requirements can amount to voter suppression. Republicans argue ID requirements are a safeguard against illegal voting and don’t present an undue hurdle.

Ms. Klobuchar, whose state is one of 14 that doesn’t require an ID at the polls, has pushed for requiring all states to allow signatures instead of voter identification. Mr. Manchin has pushed for a mandate that all states require voter ID, with documentation such as utility bills counting toward the ID requirement. He is calculating that a measure to extend voter ID requirements across the nation would be politically hard for Republicans to resist given their emphasis on ensuring the integrity of elections.

“We’re looking at how we do it and try to accommodate everybody,” Mr. Manchin said Thursday of his talks with Democrats on mandating voter ID requirements.

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