For the People Act of 2021 (H.R. 1; 117th Congress)/Sec. 3.

by John Sarbanes

Congress finds that the Constitution of the United States grants explicit and broad authority to protect the right to vote, to regulate elections for Federal office, to prevent and remedy discrimination in voting, and to defend the Nation’s democratic process. Congress enacts the “For the People Act of 2021” pursuant to this broad authority, including but not limited to the following:

(1) Congress finds that it has broad authority to regulate the time, place, and manner of congressional elections under the Elections Clause of the Constitution, article I, section 4, clause 1. The Supreme Court has affirmed that the “substantive scope” of the Elections Clause is “broad”; that “Times, Places, and Manner” are “comprehensive words which embrace authority to provide for a complete code for congressional elections”; and “[t]he power of Congress over the Times, Places and Manner of congressional elections is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supersede those of the State which are inconsistent therewith”. Arizona v. Inter Tribal Council of Arizona, 570 U.S. 1, 8–9 (2013) (internal quotation marks and citations omitted). Indeed, “Congress has plenary and paramount jurisdiction over the whole subject” of congressional elections, Ex parte Siebold, 100 U.S. (10 Otto) 371, 388 (1879), and this power “may be exercised as and when Congress sees fit”, and “so far as it extends and conflicts with the regulations of the State, necessarily supersedes them”. Id. At 384. Among other things, Congress finds that the Elections Clause was intended to “vindicate the people’s right to equality of representation in the House”. Wesberry v. Sanders, 376 U.S. 1, 16 (1964), and to address partisan gerrymandering, Rucho v. Common Cause, 588 U.S. ____, 32–33 (2019).

(2) Congress also finds that it has both the authority and responsibility, as the legislative body for the United States, to fulfill the promise of article IV, section 4, of the Constitution, which states: “The United States shall guarantee to every State in this Union a Republican Form of Government[.]”. Congress finds that its authority and responsibility to enforce the Guarantee Clause is particularly strong given that Federal courts have not enforced this clause because they understood that its enforcement is committed to Congress by the Constitution.

(3)

(A) Congress also finds that it has broad authority pursuant to section 5 of the Fourteenth Amendment to legislate to enforce the provisions of the Fourteenth Amendment, including its protections of the right to vote and the democratic process.

(B) Section 1 of the Fourteenth Amendment protects the fundamental right to vote, which is “of the most fundamental significance under our constitutional structure”. Ill. Bd. of Election v. Socialist Workers Party, 440 U.S. 173, 184 (1979); see United States v. Classic, 313 U.S. 299 (1941) (“Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted . . .”). As the Supreme Court has repeatedly affirmed, the right to vote is “preservative of all rights”, Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). Section 2 of the Fourteenth Amendment also protects the right to vote, granting Congress additional authority to reduce a State’s representation in Congress when the right to vote is abridged or denied.

(C) As a result, Congress finds that it has the authority pursuant to section 5 of the Fourteenth Amendment to protect the right to vote. Congress also finds that States and localities have eroded access to the right to vote through restrictions on the right to vote including excessively onerous voter identification requirements, burdensome voter registration procedures, voter purges, limited and unequal access to voting by mail, polling place closures, unequal distribution of election resources, and other impediments.

(D) Congress also finds that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise”. Reynolds v. Sims, 377 U.S. 533, 555 (1964). Congress finds that the right of suffrage has been so diluted and debased by means of gerrymandering of districts. Congress finds that it has authority pursuant to section 5 of the Fourteenth Amendment to remedy this debasement.

(4)

(A) Congress also finds that it has authority to legislate to eliminate racial discrimination in voting and the democratic process pursuant to both section 5 of the Fourteenth Amendment, which grants equal protection of the laws, and section 2 of the Fifteenth Amendment, which explicitly bars denial or abridgment of the right to vote on account of race, color, or previous condition of servitude.

(B) Congress finds that racial discrimination in access to voting and the political process persists. Voting restrictions, redistricting, and other electoral practices and processes continue to disproportionately impact communities of color in the United States and do so as a result of both intentional racial discrimination, structural racism, and the ongoing structural socioeconomic effects of historical racial discrimination.

(C) Recent elections and studies have shown that minority communities wait longer in lines to vote, are more likely to have their mail ballots rejected, continue to face intimidation at the polls, are more likely to be disenfranchised by voter purges, and are disproportionately burdened by voter identification and other voter restrictions. Research shows that communities of color are more likely to face nearly every barrier to voting than their white counterparts.

(D) Congress finds that racial disparities in disenfranchisement due to past felony convictions is particularly stark. In 2020, according to the Sentencing Project, an estimated 5,200,000 Americans could not vote due to a felony conviction. One in 16 African Americans of voting age is disenfranchised, a rate 3.7 times greater than that of non-African Americans. In seven States–Alabama, Florida, Kentucky, Mississippi, Tennessee, Virginia, and Wyoming–more than one in seven African Americans is disenfranchised, twice the national average for African Americans. Congress finds that felony disenfranchisement was one of the tools of intentional racial discrimination during the Jim Crow era. Congress further finds that current racial disparities in felony disenfranchisement are linked to this history of voter suppression, structural racism in the criminal justice system, and ongoing effects of historical discrimination.

(5)

(A) Congress finds that it further has the power to protect the right to vote from denial or abridgment on account of sex, age, or ability to pay a poll tax or other tax pursuant to the Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments.

(B) Congress finds that electoral practices including voting rights restoration conditions for people with convictions, voter identification requirements, and other restrictions to the franchise burden voters on account of their ability to pay.

(C) Congress further finds that electoral practices including voting restrictions related to college campuses, age restrictions on mail voting, and similar practices burden the right to vote on account of age.