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A Logical Negotiation Path for Congress on Voting Rights

"The right to vote is the crown jewel of American liberties, and we will not see its luster diminished…The U.S. Voting Rights Act is a humiliation to the South."

- Former President Ronald Reagan, 1983, signing the extension to the Voting Rights Act of 1965

Chief Justice John Roberts in the majority opinion in the Shelby County v. Holder case: of the Preclearance — requiring states to get federal permission before changing their own voting laws — was an “extraordinary” measure adopted to “address an extraordinary problem."Yet, nearly a half-century after the Voting Rights Act first became law, “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.” Black voter turnout “has come to exceed white voter turnout in five of the six States originally covered by” Section 5.

"Congress has broad power to enforce the Constitution’s voting amendments. That power, authorized a provision of the Voting Rights Act of 1965 that required states with a history of racial discrimination in voting to get federal approval, or “preclearance,” before they could make changes to voting rules. (In getting rid of the preclearance, Ginsburg famously replied that throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."

- Justice Ruth Ginsburg’s Dissent in the 2013 Shelby County v. Holder case.

- Former U.S. President Gerald R. Ford

"Because of political posturing, 95% of the Senate business gets done in the last 5% of the time."

- Jeh Johnson, 4th Homeland Secretary, U.S., 2013-2017, Meet the Press, 10/3/2021

"The right to vote is fundamental to our American democracy and protecting that right should not be about party or politics. Least of all, protecting this right, which is a value I share, should never be done in a partisan manner…I will not vote to weaken or eliminate the filibuster."

- Senator Joe Manchin, Democrat of West Virginian whose statements create the Senate quandary.


Through the quotes above:

- Former President Reagan sets for the fuming of the Southern States and many Republican Congressional leaders to the decades-old Voting Rights Act (1965).

- Justices Robert and Ginsberg describe the dilemma confronting Congress in taking action in response to the Shelby County case gutting the VRA.

-Former Secretary Johnson and Senator Manchin describe the challenges of Congressional action.

The Supreme Court of the United States (SCOTUS) in its ruling on the 1965 Voting Rights Act created a need for updated federal voting rights legislation. SCOTUS declared the Voting Rights law outdated and, in fact, implored U.S. Congress to update it. Negotiations on Voting Rights seemed bright.

Over the past year, Republican-controlled state legislatures, by introducing many voting rights bills and passing much legislation, have created a CRISIS. Federal negotiations on voting rights seem impossible.


The 1960s was an era of proclaiming national civil rights, including the Civil Rights Act of 1967 and the Voting Rights Act (VRA) of 1965.

The Voting Rights Act of 1965 is a landmark piece of federal legislation in the United States that prohibits racial discrimination in voting.[7][8] It was signed into law by President Lyndon B. Johnson during the height of the civil rights movement on August 6, 1965, and Congress later amended the Act five times to expand its protections.[7] Designed to enforce the voting rights guaranteed by the Fourteenth and Fifteenth Amendments to the United States Constitution, the Act sought to secure the right to vote for racial minorities throughout the country, especially in the South. According to the U.S. Department of Justice, the Act is considered to be the most effective piece of federal civil rights legislation ever enacted in the country.[9] It is also "one of the most far-reaching pieces of civil rights legislation in U.S. history." Wikipedia

This legislation banned any law that had a discriminatory effect on racial or language minorities. It outlawed literacy tests and similar means of disenfranchisement. It contained Section 5 which ordered preclearance for several Southern states (Alabama, Georgia, Louisiana, Mississippi, South Carolina and Virginia), stating that any change in their voting laws must be approved by the U.S. Attorney General or the U.S. District Court of DC.

The bill was introduced in a bipartisan manner with 46 Democrats and 20 Republican co-sponsors. The bill passed with a vote of 77-19 including 47 Democratss and 30 Republicans voting in favor.

SCOTUS generally upheld the Voting Rights Act of 1965 via a series of cases in the 1970’s through 2000.

Then in 2013,

In Shelby County v. Holder (2013), the U.S. Supreme Court struck down the coverage formula as unconstitutional, reasoning that it was no longer responsive to current conditions… In 2021, the Brnovich v. Democratic National Committee Supreme Court ruling resulted in even more broad removals on the remaining sections of the Voting Rights Act of 1965.[15][16] Following the ruling, Section 2 could no longer be used to regulate ballot collecting and out-of-precinct voting. Wikipedia

The Shelby case vote was 5-4 and the Brnovich vote was 6-3, along party lines.

The Persuasion Law of Social Validation

Former U.S. Supreme Court Justice Antonin Scalia described what appeared to be near national voting rights unanimity as a pursuit of the Persuasion Law of Social Validation (SV).

The Law of SV flows along the idea of “groupthink” or everyone is doing it.

Scalia contended that both Congress and SCOTUS were afraid to state their true feelings on voting rights. He would also include President Reagan’s signing of the VRA extension as part of the then group think since he called it “a humiliation of the South.”

Framing (They Who Frame the Issue, Win the Issue)

National Democrats proclaim that voting rights should be a non-partisan issue. It is ironic for this to be stated since the crisis need for the federal voting rights legislation is the action of Republican state legislatures. During the past years, Republican-controlled state legislatures have introduced 145 bills and have passed 23 bills generally restricting voting rights. Most of these have been signed by Republican governors.

During the past year, no Democratic controlled legislature has introduced, and no Democratic governor has signed, such legislation.

Surely, Republican claims all of their voting bills are about voter integrity. No legitimate research questions United States voting integrity.

The goal of these Republican voting bills and laws is clear and is sometimes stated clearly.

The goal is to make it more difficult for Democrats, especially minorities, to vote.

Too Emotional

The national voting rights bill in the Senate is named after civil rights icon former US Representative John R. Lewis. Just the mention of the name John Lewis evokes emotions in thousands, thinking of his decades-old fight for black civil rights.

According to the Brennan Center for Justice:

The John Lewis Act would modernize and revitalize the VRA by strengthening legal protections against discriminatory voting policies. First, the it restores what the Supreme Court struck down in Shelby County by creating a new formula to determine which jurisdictions with a history of voting discrimination are subject to preclearance, and it adds practice-based coverage, making certain types of discriminatory voting changes subject to preclearance. The bill also restores Section 2 in the wake of Brnovich to ensure that voters have the full ability to challenge voting discrimination in court.

Complexification of Voting Rights Bills AND There Is a Reason: Obfuscation.

Many issues are complex and are very challenging to simplify. Others use the strategy of complexification to obfuscate. For example, the recent Texas Voting Rights Act had 45 provisions. One included disallowing giving water to those waiting in voting lines, so this became the focus. The other restrictions were not highlighted.

Again, from the Brennan Center:

The new laws (state) restricting voting access are not created equal. For example, four of these laws are mixed, meaning they also contain pro-voter policies. Other restrictions are narrower in their scope like Nevada and Utah. Three states (Georgia, Florida and Iowa) have enacted broad omnibus voter suppression laws this year while Arkansas, Montana, and Arizona all passed multiple restrictive voting laws (Arkansas and Montana passed four such laws each and Arizona passed three).

Recent state laws have a wide variety of ways to make voting harder. This includes more than 18 states with 30 laws. Almost all of these states are Republican controlled including Montana, Idaho, Nevada, Utah, Kentucky, Indiana and Southern states. Listed below are some of the ways to make voting more difficult, according to the Brennan Center for Justice:

- Shorten window to apply for a mail ballot

- Shorten deadline to deliver mail ballot

- Make it harder to remain on absentee voting lists

- Eliminate or limit sending mail ballot applications to voters who do not specifically request them

- Eliminate or limit sending mail ballots to voters who do not specifically request them

- Restrict assistance in returning a voter’s mail ballot

- Limit the number, location, or availability of mail ballot drop boxes

- Impose stricter signature requirements for mail ballots

- Impose harsher voter ID requirements for mail voting

- Impose harsher voter ID requirements for in-person voting

- Expand voter purges or risk faulty voter purges

- Increase barriers for voters with disabilities

- Ban snacks and water to voters waiting in line

- Eliminate Election Day registration

- Reduce polling place availability (locations or hours)

- Increase number of voters per precinct

- Limit early voting days or hours

In contrast, most Democratic-controlled states (New Mexico, Northeast states, West Coast states and Mid Atlantic states) have passed laws expanding voter access. For example, California just passed a law requiring a ballot will be mailed to every registered voter 20 days before the election. They still have the option to vote at the precinct.

The Negotiation Way Out

Federal politicians should identify what are the core issues where there is some agreement, can be negotiated and then legislated.

They should also identify which issues are intractable.

Presenting Picture Identification: Most Americans agree that requiring some sort of picture ID such as a driver’s license is acceptable and not prohibitory. They often mention the need to show ID to buy liquor or enter a nightclub. Requiring more than one ID is not acceptable. They types of ID should be expanded.

Internet Voting: Generally, this is not seen as an intractable issue. People do have views but are still wondering about it. They clearly know that most Americans do their banking and medical transactions safely and securely online. Voting is probably less important than these two.

The obstacle right now is generally the older generation. The older generation is still accustomed to waiting on line on voting day, often at churches. The new generations? Not so much.

Maybe the new voting rights law could contain some broad research experiments in this arena.

Many claim that one reason the American voting has such high integrity is that it is regulated on a state by state basis rather than national. So, internet voting on state and local elections may be the first steps.

One anonymous Congress Member puts is this way,

Both parties fear internet voting. If we had it, the young would vote in droves and we old folks were all be voted out.

Mail in Balloting: There is probably widespread agreement on this antiquated and well- tested voting process. The states of Colorado and Oregon have successfully maintained mail-in as their primary voting method. So, a negotiated Congressional statement on this issue seems easy. Most favor “no excuse” mail voting.

Of course, mail-in voting has very little impact on the Young vote. The young generally do not use the U.S. Postal Service.

Wait Time at the Polls: Most likely, legislators could negotiate an acceptable standard of time for waiting at the polls, maybe 40-60 minutes? If the wait time is more, especially in minority neighborhoods, then the system is suspect. This standard would need to take into account the voter flow during certain hours of the day.

Early voting standard: Much like the above, Congressional leaders could probably come up with an acceptable standard such as 7-10 days before the election. If a state rule is outside of that norm, the rule is suspect.

Voting Registration: Maybe most Congressional members could agree on automatic voter registration based on residency, as many of the European democracies do, along with automatic registration via driver’s license registration and renewal.

Expanded Secure 24-hour Drop Off Boxes: This would especially assist rural voters.

Generally, Americans must actively register. In contrast, Germany has a system of recording citizens' place of residency which ensures they are automatically registered. This means that voter lists are regularly updated, including when people die or move - making it more difficult to falsely add people to the database.

Thus, Congress can find areas of agreement, pass those, and build on those on future legislation.

Prediction: John Lewis Voting Rights Bill will die in the Senate

Analysis by Chris Cillizza, CNN Editor-at-large

Cillizzsa summarizes it this way:

- Senate Majority Leader Chuck Schumer will say passing this bill is critical.

- He will ask Manchin and Sinema to vote for getting rid of the filibuster for this bill. Response=NO!

- He will seek 10 Republican votes. He also has one now: Senator Lisa Murkowski. Response=NO!


See Recommended Books under “Blogs” drop down menu. Clicking on any book will lead one to the discounted Amazon site.

Fascinating study on voting improvements for Rural Voters.

Roy J. Lewicki is the author of 'Essentials of Negotiation', published 2015 under ISBN 9780077862466 and ISBN 0077862465. Publisher: McGraw Hill Higher Education

The Conflict Resolution Training Program, Leader’s Manual, ISBN: 0-7879-6077-2. Prudence Bowman Kestner and Larry Ray

5 Languages of Appreciation in the Workplace.

Getting Your Way Every Day.


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