House Democrats just passed For the People Act, a laudable piece of legislation that strengthens the institutions of American democracy. The massive 791-page bill strives to make voter registration easier, to reduce the corrupting influence of dark money and to expand opportunities for voters to cast their ballot.
But the bill is imperfect. Democrats have chosen not to address the damage caused after the Supreme Court struck down key provisions of the Voting Rights Act. Instead, this bill focuses on flashy, big picture problems and fails to protect the democratic institutions that govern our local elections. If we’ve learned anything from the pandemic, it’s this: local elections matter. In the past year, local elected officials have made decisions about mask mandates, businesses reopening, responses to protests and the arrest and prosecution of police officers who murder unarmed Black men.
At its core, The Voting Rights Act of 1965 ensured that people of color could fairly participate in the election of these local officials who determined a community’s fate. The act equipped both the federal government and civil rights organizations with the sword and shield necessary to combat racial discrimination in voting. Among the best of these weapons was the preclearance requirement, which mandated that certain states — often the worst practitioners of racial discrimination — receive federal permission before enacting any voting change. In 2013, the Supreme Court gutted the preclearance requirement in a 5-4 vote.
The preclearance requirement was especially effective because so much election mischief happens at the local level. Cities, counties, parishes and other municipalities administer registration and Election Day practices, and these local election officials have the discretion to select the location of polling places, the people who staff the polls, the training received by poll workers and the machines used at the polls. These officials also have considerable say over registration practices and vote-counting procedures. The preclearance requirement prevented local election officials from engaging in discrimination, common Election Day misbehavior, like moving a polling place out of a community of color at the last moment.
These acts of discrimination are neither abstract nor a relic of the past. One recent investigation examined the impact of recent precinct closures and relocations across Georgia. These closures meant that voters had to travel farther to cast their ballots. The investigation concluded that, in 2018 alone, these closures impeded between 54,000 to 85,000 voters from participating in elections, which reduced overall turnout in the midterm election by as much as two percent. To no one’s surprise, these closures had a discriminatory impact — Black voters were 20 percent more likely to be disenfranchised.
To be clear, a new preclearance requirement is not necessarily the best modern solution, but the bill fails to propose a solution for problems such as these. It also fails to create any new legislative tools that empower communities of color to fight for fair local elections.
New tools could do more than ensuring that voters of color can fully and equally participate in local elections. They could ensure that minority candidates and minority-preferred candidates receive a fairer shake on Election Day. These candidates, first elected to local office often from a pool of politicians and leaders, can eventually pursue statewide and federal office. Therefore, these tools are also necessary to ensure diversity amongst our elected leaders.
Further, new tools are needed to ensure that local election administrators are sensitive to the Election Day needs of communities of color. These officials must consider how changes will impact the voters whom they serve and they must publicly disclose their non-discriminatory reasons for any voting change. In short, if these election administrators know that they will face federal consequences for their discretionary voting change, they’re less likely to engage in controversial, borderline and divisive practices.
Lastly, by ensuring that local elections run smoothly, the tools help reduce problems in congressional and presidential elections, where turnout is significantly higher and which receive a disproportionate amount of attention.
The bill makes huge strides for American democracy. No one should claim that dark money and large-scale statewide voting barriers aren’t noxious. Indeed, experts estimate that voter identification requirements may disenfranchise millions of Americans, and such laws disproportionately harm poor voters and voters of color. But no one, except the federal government, has the capacity to ensure fair federal elections at the local level. And sadly, For the People Act fails to do so.
Steven Wright served in the Voting Rights Section of the U.S. Department of Justice for five years. He currently teaches Law and English at the University of Wisconsin-Madison.