The John Lewis Voting Rights Advancement Act’s Battle to Get Through Congress

Jacob Jankowski is a 2L at the Washington College of Law. He graduated from the University of Wisconsin-Madison with a bachelor’s degree in zoology. He changed career paths after working in a veterinary hospital for two years and is interested in voting rights, civil rights, and national security.

The Voting Rights Act of 1965 (“VRA”) was monumental legislation that enforced the 14th and 15th Amendments.[1] Section Four subjected states to preclearance if they participated in voting practices that limited people of color’s voting rights.[2] Districts subjected to preclearance needed permission from the Department of Justice (“DOJ”) before they could enact new voting laws.[3]

This practice remained until 2013 when the Supreme Court decided Shelby County v. Holder (“Shelby”). The 5-4 decision held Section Four unconstitutional because it no longer accurately determined when a voting law was discriminatory.[4] Chief Justice John Roberts provided that Congress could update the formula to revive preclearance.[5]

The congressional push to update the VRA is in response to Shelby. House Minority Leader Hakeem Jefferies (D-NY) cited Shelby when reintroducing the John Lewis Voting Rights Advancement Act (“John Lewis Act”) on September 19, 2023.[6] The John Lewis Act, named after the late Representative from Georgia, serves as the main vehicle to update the VRA.[7] The first iteration of the bill was introduced to the House Judiciary Committee in 2015 by Representative Terri Sewell (D-AL). [8] This version sought to update the VRA formula which would subject a state to preclearance for ten years if there were fifteen or more violations within the last twenty-five years, or if there were ten or more violations in the last twenty-five years but at least one was committed by the state.[9] Separately, a district could be subject to preclearance for ten years if it committed three or more violations in the last twenty-five years.[10] This bill and its immediate predecessor died in committee when the Republican-controlled House did not present them for debate.[11]

The bill was later reintroduced to a Democrat-controlled House and was passed on December 6, 2019.[12] The bill had 229 cosponsors and passed by a vote of 228-187; only one Republican, Representative Brian Fitzpatrick (R-PA), voted aye.[13] The Act moved to the Senate. There, it was sponsored by Senator Patrick Leahy (D-VT) with forty-seven cosponsors; however, it died in committee.[14] The House passed the same Act in 2021 by a vote of 219-212; it was sent to the Senate, again sponsored by Senator Leahy.[15] This time, Representative Sewell was responding to the 2021 Supreme Court decision in Brnovich v. DNC.[16] The House Judiciary Administration Subcommittee held investigatory hearings for five months before reintroducing the bill in August.[17] However, because the Senate was divided evenly between Democrats and Republicans, there were not enough ayes to invoke cloture.[18] Senate Majority Leader Chuck Schumer (D-NY) coupled the John Lewis Act with another voting bill and re-titled them the Freedom to Vote: John R. Lewis Act.[19] The House passed this amended legislation, however, the Senate still could not invoke cloture.[20] Leader Schumer then attempted to change Senate rules to allow the bill to pass with a simple majority; this failed when Senators Manchin and Sinema joined all fifty Republicans to vote against the change.[21] The bill was reintroduced in the House of Representatives on September 19, 2023. The House has failed to debate or vote on this new introduction.[22]

Support for the bill is split along party lines. Minority Leader Mitch McConnell (R-KY) stated the bill gives too much power to DOJ in overseeing state election processes and is unnecessary because voting law is secure.[23] Representative Jim Jordan (R-OH) as the ranking member of the House Judiciary Committee echoed this in 2021.[24] On the contrary, every single Democrat in Congress voted in favor of the bill.[25] During floor debate on the Freedom to Vote Act, then-Speaker Nancy Pelosi (D-CA) claimed the bill would end voter suppression, end partisan gerrymandering, stop dark special interest money from crushing the political system, and empower grassroots politics.[26]

The John Lewis Act updates areas of the VRA beyond preclearance. The bill expands voting violations beyond the 14th and 15th Amendments to include violations of all federal laws.[27] Next, the bill lays out a totality-of-the-circumstances analysis, providing examples of factors courts should or should not consider when determining if the VRA was violated.[28] The bill also provides districts in a state subject to preclearance an opportunity to get out of that coverage, by filing an application with the attorney general who will determine if the district meets necessary standards.[29]

The bill faces an unknown future; however, it seems Representative Sewell and her fellow Democrats are prepared to fight for it. Representative Sewell told NPR, “As long as I have breath in me. . . I will continue to keep introducing this bill. . ..”[30] The bill has almost no chance of passing the House while Republicans control it.[31] Additionally, Senate Democrats still do not have enough votes to overcome a Republican filibuster.[32] Further, the House is at a stand-still and cannot consider any legislation until a new speaker is elected to replace former Speaker Kevin Mcarthy (R-CA).[33] The only hope for Democrats to pass the bill is to flip control of the House and expand their lead in the Senate. [34]

[1] Shelby County v. Holder, 570 U.S. 529, 536 (2013).

[2] 52 USC 10303 § 4(a)(1)(B).

[3] Id. § 5(a).

[4] 570 U.S. 529, at 551-53, 556-57.

[5] Id. at 557.

[6]  Hakeem Jeffries, House Minority Leader, U.S. House of Reps., House Democratic Leaders on John Lewis Voting Rights Advancement Act (Sept. 19, 2023) https://www.c-span.org/video/?530561-1/house-democratic-leaders-john-lewis-voting-rights-advancement-act.

[7] Press Release, Rep. Terri Sewell, House of Reps., On Nat’l Voter Registration Day, Rep. Sewell and House Democrats Introduce the John R. Lewis Voting Rts Advancement Act (Sept. 19, 2023) https://sewell.house.gov/2023/9/on-national-voter-registration-day-rep-sewell-and-house-democrats-introduce-the-john-r-lewis-voting-rights-advancement-act.

[8] H.R. 2867 114th Cong. (2015).

[9] Id. §§ 2(c)(1)(A), 4(b)(1)(A)(i)-(ii).

[10] Id. § 4(b)(1)(B).

[11] Ari Berman, Opinion, Why the Voting Rights Act is Once Again Under Threat, N.Y. Times (Aug. 6, 2015), https://www.nytimes.com/2015/08/06/opinion/why-the-voting-rights-act-is-once-again-under-threat.html (stating that Congress will not schedule a hearing on the Voting Rights Advancement Act of 2015).

[12] H.R. 4 116th Cong. § 3 (2019); The Library of Congress, All Actions: H.R.4 – 116th Congress (2019-2020), cong.gov., https://www.congress.gov/bill/116th-congress/house-bill/4/all-actions.

[13] United States House of Representatives, Roll Call 654 | Bill Number: H. R. 4, clerk.house.gov, https://clerk.house.gov/Votes/2019654 (last visited Oct. 20, 2023).

[14] The Library of Congress, All Actions: S.4263—116th Congress (2019-2020), cong.gov, https://www.congress.gov/bill/116th-congress/senate-bill/4263/all-actions (last visited Oct. 20, 2023).

[15] United States House of Representatives, Roll Call 260 | Bill Number: H. R. 4, clerk.house.gov, https://clerk.house.gov/Votes/2021260 (last visited Oct. 20, 2023); The Library of Congress, S.4 – John R. Lewis Voting Rights Advancement Act of 2021, cong.gov, https://www.congress.gov/bill/117th-congress/senate-bill/4 (last visited Oct. 20, 2023).

[16] Press Release, Rep. Terri Sewell, U.S. House of Reps., Rep. Sewell Introduces H.R.4, the John R. Lewis Voting Rights Advancement Act, to Restore Protections of the Voting Rights Act of 1965 (Aug. 16, 2021) (explaining that the decision in Brnovich makes it more difficult to challenge racially discriminatory voting laws under section 2 of the Voting Rights Act).

[17] Id.

[18] Roll Call Vote 117th Congress – 1^st Session, senate.gov, https://www.senate.gov/legislative/LIS/roll_call_votes/vote1171/vote_117_1_00459.htm (last visited Oct. 20, 2023); About Filibusters and Cloture, senate.gov, https://www.senate.gov/about/powers-procedures/filibusters-cloture.htm (last visited Oct. 20, 2023) (explaining what cloture is).

[19] The Library of Congress, All Actions: H.R.5746 – 117th Congress (2021-2022), cong.gov., https://www.congress.gov/bill/117th-congress/house-bill/5746?r=4 (last visited Oct 20, 2023).

[20] Id.

[21] Id.; Jonathan Weisman, In Voting Rights Fight, Democrats Train Ire on Sinema and Manchin, N.Y. Times (Jan. 19, 2022) https://www.nytimes.com/2022/01/19/us/politics/democrats-filibuster-sinema-manchin.html (explaining that Senators Manchin and Sinema support the bill however, they do not support changing the Senate rules to overcome the filibuster).

[22] Hakeem Jeffries, House Minority Leader, U.S. House of Reps., House Democratic Leaders on John Lewis Voting Rights Advancement Act, C-SPAN (Sept. 19, 2023), https://www.c-span.org/video/?530561-1/house-democratic-leaders-john-lewis-voting-rights-advancement-act.

[23] Senator McConnell Says John Lewis Voting Rights Bill is “Unnecessary”, C-SPAN (June 8, 2021), https://www.c-span.org/video/?c4966048/senator-mcconnell-john-lewis-voting-rights-bill-unnecessary.

[24] Press Release, Rep. Joyce Beatty, U.S. House of Reps., cleveland.com: House approves voting rights bill over objections from Ohio’s Jim Jordan (Aug. 24, 2021) https://beatty.house.gov/media-center/in-the-news/clevelandcom-house-approves-voting-rights-bill-over-objections-from-ohio-s-jim-jordan.

[25] Roll Call Vote 117th Congress – 1^st Session, senate.gov, supra note 18; United States House of Representatives, supra note 17; S. Rep. No. 113-18, at 8 (explaining Senate rules for reconsideration to show that Leader Schumer voted against the bill so he could bring a motion to reconsider).

[26] 168 Cong. Rec. H164 (daily ed. Jan. 13, 2022) (statement of Rep. Nancy Pelosi).

[27] H.R. 4 § 4(a).

[28] Id. § 2(b).

[29] Id. 4 § 5(c).

[30] Hansi Lo Wang, Restoring the Voting Rights Act is still on this Alabama Democrat’s Agenda, National Public Radio (Sept. 19, 2023, 5.00 AM), https://www.npr.org/2023/09/19/1199617896/john-lewis-voting-rights-act-terri-sewell.

[31] Id.

[32] Id.

[33] Lisa Mascara et al., House Republicans drop Jim Jordan as their nominee for speaker, stumbling back to square one, Associated Press (Oct. 20, 2023), https://apnews.com/article/speaker-jordan-republican-mchenry-2e32f930b4fb83a4fcae2171c9e1c055.

[34] Lo Wang, supra note 30.