“The For the People Act’s Missing Piece”

I wrote this column for Democracy Docket about a provision I think should be part of any electoral reform legislation: an “Anderson-Burdick fix,” enacted under Congress’s Elections Clause authority, that instructs courts to apply heightened scrutiny to voting restrictions. In recent years, the existing Anderson-Burdick doctrine has become increasingly unfavorable to plaintiffs. Congress should change that unsatisfactory regime and so guard against whatever new measures would-be vote suppressors manage to think up.

But the For the People Act wouldn’t invalidate all of Georgia’s new restrictions. It wouldn’t reach the ban on mobile voting centers. Nor would it reverse the criminalization of helping hungry or thirsty voters. Left standing, too, would be the legislature’s takeover of the elections board. The reason for these omissions is the Act’s underlying strategy. It specifies many steps that states must take to make voting easier, and it outlaws many policies that hinder voting. But it doesn’t include any catch-all provision applicable to all voting limits—including ones Congress hasn’t yet imagined. The Act thus leaves open the door to novel barriers erected by wily vote suppressors. 

How could the Act slam this door shut? The most promising proposal is an amendment drafted by Rep. Mondaire Jones (D-NY). Under this amendment, any regulation that imposes a “severe or discriminatory burden” on voting in federal elections would be unlawful unless a jurisdiction could prove that the rule is the least restrictive way to further a compelling state interest. (Lawyers call this strict scrutiny.) Any regulation that imposes a milder voting burden would also be invalid unless it significantly furthers an important state interest. (This is intermediate scrutiny in legalese.) 

Rep. Jones’s amendment would eliminate the For the People Act’s blind spot with respect to new kinds of voting restrictions. Take the elements of Georgia’s law that would be unaffected by the Act as it currently stands. Rep. Jones’s amendment would reach those policies. All of them burden voting to some degree—potentially to an extreme degree if Georgia’s legislature uses its new powers to discard lawfully cast ballots. So the policies would be upheld only if Georgia could convince a court that they’re sufficiently linked to a vital enough interest. . . .

Is it constitutional, though, for Congress to require heightened judicial scrutiny for all burdensome regulations of federal elections? Without a doubt. The Elections Clause grants Congress essentially plenary power over the “Manner of [congressional] elections.” Even the Roberts Court—no friend of expansive congressional authority—has conceded that, under the Clause, Congress could “provide a complete code for congressional elections.” It’s also unremarkable for Congress to use the Clause to create new bases for lawsuits. Earlier electoral statutes in the 1990s and 2000s did exactly that. . . .

[D]issatisfaction with the constitutional rule is certainly a driver of Rep. Jones’s amendment. In the runup to the 2020 election, the Roberts Court upheld one voting restriction after another. Over its entire history, the Roberts Court has never ruled in favor of a plaintiff alleging an undue burden on her right to vote. Rep. Jones’s amendment is necessary, then, because today’s courts all too often fail to protect the franchise. Their dismal record is the impetus for congressional intervention.

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