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Biden Moves to Strengthen Voting

The executive order he issued over the weekend is admirable—but there’s only so much a president can do acting alone.
March 9, 2021
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(Photo by Stephen Maturen/Getty Images)

When Joe Biden was sworn in as president on January 20—along with two Democratic senators from Georgia whose longshot run-off victories transferred control of the Senate—many election watchers heaved a sigh of relief. Predictions of a failed November election did not come to pass. American democracy held. And it did so during a pandemic and under an anti-democratic presidency the likes of which the United States has never seen.

Alas, it’s not time to be sanguine about American elections. Democracy remains in grave peril, and Joe Biden knows it. To take what action he can within the limits of the power of his office, on March 7 he issued an executive order on promoting access to voting.

However, there’s only so much a president acting alone can do to protect the right to vote. Elections are run by states, which have broad powers to manage their own voting processes, although Congress can pass laws regulating the “times, places and manner” of federal elections.

As of mid-February, lawmakers in 43 states had introduced 253 bills that would restrict voting access, a fourfold increase since the same time last year. Although many other pending bills would expand access to the ballot, some of the newer voter-suppression efforts are unabashedly obvious in their anti-democratic aims—such as a proposed Georgia law that would criminalize handing out food and water to voters standing in lines while reducing early voting days and ballot dropboxes.

David Lucas, a Democrat from Macon who has served in Georgia’s general assembly since 1975 and an African American, choked back tears objecting to a bill that would require a driver’s license number or photocopy of an approved ID in order to apply for an absentee ballot in lieu of the current signature verification process. “We all know what happened back in the day,” he said, citing Southern states’ history of disenfranchising voters of color after the Civil War. “That’s what this bill is about. . . . The election didn’t turn out the way you want and you want to perpetuate the lie that Trump told.” The bill passed the state senate largely on party lines and is pending in the state house of representatives.

Courts offer scant protection for voters. The Constitution is silent on an affirmative right to vote, so the Supreme Court has concocted its own balancing test—called the Anderson-Burdick test—that gives courts discretion to determine when a law restricting voting is too burdensome. Because of the test’s inherent subjectivity, bogus state claims of voter fraud and enhanced electoral integrity—divorced from actual empirical data—operate to justify in judges’ minds laws that confine ballot access for no good reason. Even worse, the Supreme Court scrapped Congress’s spectacularly successful legislative fix to this suppression nonsense in 2013, when it took the Department of Justice out of the business of “preclearance”—scrutinizing in advance proposed state laws that would burden voting.

For its part, the U.S. House of Representatives last Thursday passed H.R. 1, a voting rights bill that would provide vital reforms in the wake of Donald Trump’s Big Lie and the ensuing conflagration of voter-suppression bills in the statehouses. The federal law would, among other things, mandate nationwide same-day voter registration; require states to automatically register voters for federal elections; standardize voting-by-mail; allow voters with felony convictions to vote; overhaul federal campaign finance and ethics laws; tighten states’ ability to arbitrarily purge voters from the rolls; and require states to use nonpartisan redistricting commissions rather than political gerrymandering to carve up congressional districts.

Much as the COVID vaccines now being administered offer a lifeline for the American people, H.R. 1 offers a lifeline for American democracy. But it has no chance of passage in the filibuster-controlled Senate. After all, Republicans oppose the bill—as you would expect of a party that represents a shrinking minority which can only hold on to power by opposing measures that protect and promote the franchise.

Enter Biden’s executive order. What does it do, and what are its limitations?

  • The executive order directs federal agencies to leverage existing online resources to educate people about how to register and to push out voter registration materials. The directive includes updates to vote.gov, the primary federal website for all-things-elections, and enhanced access to multilingual information. That said, as great as education is, it does nothing to actually change voter access laws.
  • The executive order does increase voter access for communities within executive branch control—the military, federal employees, and inmates in federal facilities—and directs federal agencies to work with states to assist in voter registration efforts, including through the use of federal facilities. States can resist the feds’ help, however.
  • And the executive order provides mechanisms for analyzing ballot barriers to voters with disabilities and within Native American communities. But again, this kind of analysis can only have a real-world effect if it is ultimately acted upon by state legislatures or Congress.

Although Biden’s executive power to turn the tide on voting is meager, his executive order sends an important message that the president might be willing to use his political capital to fight against the anti-democracy cancer that has millions of Americans believing that the 2020 election of the president (not down-ballot races, mind you) was illegitimate. Congress is the clincher. So far, Democrats don’t have the votes to end the filibuster or reform the filibuster rules to get H.R. 1 through the Senate. One holdout, Senator Joe Manchin (D-W.V.), on Sunday opened the door for filibuster reforms for purposes of passing legislation as vital as H.R. 1. “If you want to make it [the filibuster] a little bit more painful, make him stand there and talk,” Manchin told Chuck Todd on NBC’s Meet the Press.

Requiring senators to do more than send an email to invoke the filibuster to halt legislation is hardly unfair to either party. It’s certainly far more humane than making thousands of voters stand in line for hours to cast a ballot that could determine if senators still have a job.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her latest book is What You Need to Know About Voting—and Why (HarperCollins). Twitter: @kimwehle.