President Biden Issues Executive Order Seeking to Promote Voting Rights
March 11, 2021
By Brett W. Johnson, Tracy A. Olson and Mary Colleen Fowler
On March 7, 2021, President Biden signed an executive order aiming to increase voters’ access to elections.1 The executive order serves as an “initial step” in President Biden’s plan to work with Congress to attempt to revitalize the Voting Rights Act of 1965 (VRA). As state legislatures across the country are working diligently to review and reform election laws following concerns associated with the 2020 election, it is likely that a reinvigorated United States Department of Justice may proactively challenge some of the proposed laws. This is especially the case in light of the mandatory redistricting efforts that will begin when the Census Bureau finally releases the results of the census in the Fall. For those organizations involved in the political process, such varied and diverse changes to the election administration framework may have significant and potentially unforeseen impacts on future elections.
President Biden’s order requires that federal agencies “consider ways to expand citizens’ opportunities to register to vote and to obtain information about, and participate in, the electoral process.”2 Additionally, the order “directs the heads of all federal agencies to submit proposals for their respective agencies to promote voter registration and participation within 200 days” and outlines measures to modernize Vote.gov.3 Particularly, the executive order seeks to increase outreach to communities including the disabled, Native American communities, military personnel serving overseas, and the incarcerated.4
Since the Supreme Court’s ruling in Shelby County v. Holder, which essentially eliminated the viability of VRA challenges under Section 5, voting rights advocates have worked to push for full restoration of the VRA.5 In Shelby County, the Court held that the formula used to determine if a jurisdiction is covered under Section 5’s preclearance requirements was unconstitutional.6 Specifically, Section 5 required certain states and areas seek government approval for their voting rules to ensure fair voting practices. The formula applied Section 5 to jurisdictions with a history of discriminatory voting laws. Nevertheless, the Court determined that law did not reflect current conditions and encouraged Congress to draft a new formula that reflected current conditions.7
Because the Supreme Court declared that the formula bringing jurisdictions within the scope of Section 5 was unconstitutional, the Court’s holding made Section 5 largely unenforceable. Accordingly, since Shelby County, courts have seen an increase in challenges to voting practices under Section 2, which prohibits voting practices that discriminate on the basis of race or color.8 With increased VRA-related litigation and with the issuance of additional state and local-level voting laws, it is likely that Congress will follow President Biden’s lead to revisit and update the VRA.
President Biden’s executive order suggests that his administration may be concerned about the viability of the VRA as a tool to facilitate their desired level of civic participation. Although limited in its application, the order sends a strong signal to lawmakers, suggests future voting legislation, and enhanced scrutiny of state election laws. For example, the Biden Administration plans to work with lawmakers to pass the For the People Act, which includes additional reforms to make voting “equitable and accessible.” Any efforts to revitalize the VRA may also be suspect to the United States Constitution, which defers to the state legislatures to make and enforce local election law and, as courts have previously stated, are the laboratories of democracy.
Those involved in the voting process, including state and local lawmakers, should monitor the implementation of President Biden’s executive order, Congressional election reform efforts, and potentially a revitalized Federal Elections Commission. Based on new federal and state laws, consultants, political parties, and other political committees involved in the electoral process may consider reviewing voting practices and procedures to ensure compliance with unfolding developments.
©2022 Snell & Wilmer L.L.P. All rights reserved. The purpose of this publication is to provide readers with information on current topics of general interest and nothing herein shall be construed to create, offer, or memorialize the existence of an attorney-client relationship. The content should not be considered legal advice or opinion, because it may not apply to the specific facts of a particular matter. As guidance in areas is constantly changing and evolving, you should consider checking for updated guidance, or consult with legal counsel, before making any decisions.