Congress has less than five months to pass meaningful voting rights legislation in response to the January 6th insurrection. After that, all signs point to the balance of power in Congress shifting, slamming the door on any opportunities to strengthen our democracy by addressing voting discrimination and expanding voting access before the 2024 presidential election.
After the failure to advance legislation that would restore critical provisions of the Voting Rights Act, some in Congress are now focused on reforming a single piece of election law: the Electoral Count Act, also known as the ECA. This outdated and arguably ambiguous law governs how Congress counts and certifies electoral votes from the states. The ECA’s ambiguities could allow malicious congress members, governors or secretaries of state to overturn a presidential election by ignoring the popular vote in one or more states. Some members of Congress tried to do exactly that on January 6th. Without reform, they will certainly try it again.
A bipartisan bill introduced in Congress last month would revise the Electoral Count Act to prevent this type of interference. This is a start, but is not enough.
The ECA should absolutely be reformed to respond to the threat to democracy made real during the January 6th insurrection. But doing so will not solve one of the root causes of that attack: the lies that widespread voter fraud stole an election victory from Donald Trump — fraud originating in cities with large voting populations of color.
The rioters who descended on the Capitol were fed these lies by the former President and his counterparts. Even if the ECA is reformed, they, along with millions of other Americans and many state legislatures, will continue to believe these lies and act upon them. Already we’ve seen waves of new voter suppression bills enacted at the state level since 2020, justified under the guise of “preventing voter fraud.”
Meanwhile, the Supreme Court is poised to continue its dismantling of the Voting Rights Act through at least one case it will hear this Fall — Merrill v. Milligan. The only way for Congress to stop this “parade of horribles” from stifling the political power of voters of color in the 2024 presidential election is to pass voting rights legislation in addition to ECA reform.
While reforming the ECA is necessary to guarantee that voters whose ballots have already been counted have their voices heard, it does nothing to stop states from preventing voters of color from voting or having their votes counted in the first place. Only voting rights legislation can do that.
Take Georgia and Texas, for example. Georgia’s SB 202 drastically reduced the number of drop boxes available to voters of color. Under SB 202, the number of drop boxes in four metro Atlanta counties plummeted from 107 to 25 — just roughly two dozen drop boxes for more than 200,000 voters. To make matters worse, more than 90% of the voters who saw their travel time to a drop box increase live in cities or suburbs — home to the majority of the state’s voters of color.
In Texas, voters have already faced the negative impacts of the voter suppression law known as SB 1. In the Lone Star State’s primary election this past spring, approximately 12.4% of all mail-in ballots — more than one in every eight mail-in ballots cast — were not counted. By comparison, in the 2018 midterm election, less than 2% of mail-in ballots were rejected statewide. Data from this spring shows that in Harris County — home to Houston, the nation’s most diverse city and its fourth most populous — voters who lived in areas with large Black populations were 44% more likely to have their ballots rejected than those who lived in heavily white areas. If these trends continue this November, thousands of Black Texans may have their votes tossed out.
Both Georgia and Texas have argued in federal court that the Voting Rights Act does not even allow Black voters to challenge these kinds of laws, potentially leaving them without remedies. This magnifies the sad truth: ECA reform does nothing to stop Texas, Georgia or other states from enacting even more voter suppression laws, or the Supreme Court from ruling that voters of color cannot challenge these laws under the Voting Rights Act before the next presidential election.
The same individuals who waved and wore confederate flags as they attacked the Capitol building on January 6th will shift their energy away from Congress’ certification process and redouble their state and local efforts to make sure that Black voters and other voters of color do not have their voices heard in the next election.
This Congress must be just as committed to protecting voters of color on the front-end as they are to protecting the electoral college certification process on the back end. Lawmakers cannot let the sun set on the 117th Congress without passing substantive voting rights legislation.
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Caleb Jackson is the Policy Counsel for The Lawyers’ Committee for Civil Rights Under Law.
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