President Joe Biden, fresh from a major victory with Senate approval of his $1.9 trillion American Rescue Act, started the new week in Washington by placing a major focus on voting rights. That, in turn, drew attention to the challenge of getting the Senate to take up vital measures to defend and extend the right to vote.

Executive and legislative action honors the legacy of John Lewis

On Sunday, the 56th anniversary of the “Bloody Sunday” march for voting rights in Selma, Ala., the new president appeared at the annual Martin and Coretta Scott King Unity Breakfast and recalled the legacy of the late Representative John Lewis, a heroic Selma marcher who died on July 17, 2020, at age 80. Biden recalled, “A few days before he passed, Jill and I spoke with John, Congressman Lewis. But instead of answering our concerns about him—‘How are you doing, John?’—he asked us to stay focused on the work left undone to heal and to unite this nation around what it means to be an American. That’s the God’s truth. John wouldn’t talk about his pending death or his concerns. He said we just got to get this done.”

To that end, the president issued a 2,569-word executive order to protect “free and fair elections that reflect the will of the American people.”

In a major break from the Trump administration’s focus on voter suppression, voter intimidation, and “big lie” denial of 2020 election results, Biden, on Sunday, ordered:

Executive departments and agencies (agencies) should partner with State, local, Tribal, and territorial election officials to protect and promote the exercise of the right to vote, eliminate discrimination and other barriers to voting, and expand access to voter registration and accurate election information. It is our duty to ensure that registering to vote and the act of voting be made simple and easy for all those eligible to do so.

Biden’s executive order is ambitious

Here’s some of what the White House says the president’s executive order will do:

• Direct federal agencies to expand access to voter registration and election information. “The executive order will direct the head of each federal agency to submit to the Assistant to the President for Domestic Policy a strategic plan outlining ways their agency can promote voter registration and participation within 200 days.”
• Direct federal agencies to assist states under the National Voter Registration Act. “Under today’s action, the head of each federal agency will evaluate where and how the federal agency provides services that directly engage with the public, and to the greatest extent possible, formally notify states in which it provides services that it would agree to designation as a voter registration agency. If requested by a state to be designated as a voter registration agency, the federal agency shall to the greatest extent possible agree to such designation.”
• Move to improve and modernize Vote.gov. “The Executive Order will direct the General Services Administration (GSA) to submit to the Assistant to the President for Domestic Policy a strategic plan outlining steps to modernize and improve the user experience of the federal government’s premier source of voting-related information, Vote.gov, including the accessibility of the website within 200 days. The order requires GSA to seek the input of affected stakeholders, including election administrators, civil rights and disability rights activists, Tribal Nations, and nonprofit groups that study best practices for using technology to promote civic engagement.”
• Increase federal employees’ access to voting. “The Executive Order will direct the Director of the Office of Personnel Management to work with the head of federal agencies to provide recommendations to the President regarding leave for federal employees to vote or to volunteer as nonpartisan poll workers, ensuring that the federal government serves as a model to other employers.”
• Move to analyze barriers to voting for people with disabilities. “The Executive Order will direct the National Institute of Standards and Technology (NIST) within the Department of Commerce to evaluate and publish recommendations on the steps needed to ensure that the online Federal Voter Registration Form is accessible to people with disabilities within 200 days. The order directs NIST—in consultation with the Department of Justice, the Election Assistance Commission, and other agencies—to analyze barriers to private and independent voting for people with disabilities, including access to voter registration, voting technology, voting by mail, polling locations, and poll worker training.”
• Increase voting access for active-duty military and other overseas voters. “The executive order will direct the Secretary of Defense within 200 days to establish procedures to annually offer each member of the Armed Forces on active duty the opportunity to register to vote in federal elections, update voter registration, or request an absentee ballot. Additionally, the Secretary of Defense—in coordination with the Department of State, the Military Postal Service Agency and United States Postal Service—is required to submit a strategic plan for an end-to-end ballot tracking system for overseas ballots. And, the head of each federal agency with overseas employees is directed to designate a point of contact to coordinate with the Federal Voting Assistance Program (FVAP) and promote voter registration and voting services available to these employees.
• Provide voting access and education to citizens in federal custody. “The order will direct the Attorney General to establish procedures to provide educational materials related to voter registration and voting, and to the extent practicable, to facilitate voter registration, for all eligible individuals in the custody of the Federal Bureau of Prisons. It also directs the Attorney General to coordinate with the Probation and Pretrial Services Office to develop similar procedures for eligible individuals under its supervision. The Executive Order also directs the Attorney General to establish procedures to ensure the U.S. Marshals Service includes language in jail contracts to provide eligible individuals educational materials related to voter registration and voting, and to facilitate voting by mail, to the extent practicable and appropriate. And, it directs the Attorney General to take steps to support formerly incarcerated individuals in obtaining a means of identification that satisfies state voter identification laws.”
• Establish a Native American voting rights steering group. “The order will establish an interagency steering group on Native American voting rights to be coordinated by the Domestic Policy Council. The steering group will include, at a minimum, the Attorney General, the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Health and Human Services, the Secretary of Labor, and the Secretary of Veterans Affairs or their designees. The steering group will study best practices, in consultation with Tribal Nations, for protecting voting rights of Native Americans and will produce a report within one year of the date of the order outlining recommendations for increasing voter outreach, education, registration, and turnout in Native American communities.”

This is a big deal. But executive orders only go so far. Here’s what else is happening:

Biden wants the Senate to move rapidly to enact HR 1: The For the People Act

“This is a landmark piece of legislation that is urgently needed,” he said in a video issued Sunday. “I hope the Senate does its work so I can sign it into law.”

HR 1, a sweeping campaign finance reform and democracy-building measure, won House approval last week on a party-line 220-210 vote. Maryland Democrat John Sarbanes, who led the House push, now says, “We have to take advantage of this moment, and I think there will be an appreciation of that in the United States Senate. We’ll see if it can be done on a bipartisan basis. If not, then I think it makes sense to step back and reevaluate the filibuster and whether that makes sense and figure out if there’s another path forward.”

Don’t bet on much bipartisanship. Senate Republicans can stop this measure unless Senate Democrats change the rules. They should eliminate the filibuster, and there’s been some progress on that front. Senate majority whip Dick Durbin (D-Ill.) says, “Unfortunately, we’ve reached that point [where some action must be taken]. And if enough members in the Senate agree, we’ll change the rules.” But are members of the Senate Democratic Caucus united for reform? Not necessarily. West Virginia Democrat Joe Manchin is still firmly opposed to filibuster reform.

Is there an alternative route? The Senate could make a rules exception for democracy issues. That’s what Norm Eisen, who served as President Obama’s ethics czar; Richard W. Painter, who served as chief ethics lawyer for former George W. Bush; and Law Forward chief counsel Jeffrey Mandell argue in a smart proposal for how Democrats should proceed. Read it here.

The House needs to get to work on the John Lewis Voting Rights Act

In the face of a wave of Republican efforts to gut existing voting rights protections in the states—which has been well documented here by the Brennan Center—there’s a renewed push to restore federal Voting Rights Act protections that were undermined by the US Supreme Court in 2013.

Members of Congress are moving to reintroduce the John Lewis Voting Rights Act, and House majority whip Jim Clyburn (D-S.C.) said Sunday that the bill will be on Biden’s desk by this summer. Clyburn wants it signed by August 6, the 56th anniversary of President Lyndon Johnson’s signing of the Voting Rights Act in 1965.

Sylvia Albert, the director of voting and elections at Common Cause, says it is vital for the House and Senate to take up the legislation. Here’s a link to Albert’s argument that action is urgent. “In 2013, in a 5-4 decision, the Supreme Court eroded key parts of the Voting Rights Act of 1965, which protected voters from racial discrimination and intimidation. This decision led to numerous states passing new anti-voter laws that restrict access to the ballot box and cut the number of polling places in our communities,” she explains. “These changes have disproportionately restricted the freedom to vote for voters of color, often leading to long lines and less resources to run accessible elections in Black and brown communities. The John R. Lewis Voting Rights Act is our chance to reverse this trend by restoring the Voting Rights Act and strengthening the provisions in it to protect the freedom to vote for all Americans, particularly voters of color.”