We’ve been tracking the legislation to restrict and also to expand voting access across the country for over a decade, and right now we have well over 250 bills pending in 43 states across the country that would restrict access to voting. That is seven times the number of restrictive voting bills we saw at the same time last year. So it is a dramatic spike in the push to restrict access to voting.

So we’ve seen this is a growing movement. It’s not brand-new this year, it wasn’t invented by Donald Trump, but it was certainly supercharged by his regressive attack on our voting systems. We’re seeing its impact in Georgia, but also across the country.

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[H.R. 1] would create a baseline level of voter access rules that every American could rely on for federal elections. This one would address almost comprehensively the attacks on voting rights that we’re seeing in state legislatures across the country. So, for example, in many states we’re seeing attempts to eliminate no-excuse absentee voting. H.R. 1 would require all states to offer no-excuse absentee voting. Every state would then offer that best practice of voting access, and it would no longer be manipulated, election by election, by state legislators to target voters they don’t like.

The Constitution explicitly grants Congress the power “at any time” to “make or alter” the regulation of the “time, place and manner” of federal elections. The broad grant of Congressional authority is contained in Article 1, Section 4 of the Constitution and was recently noted by the U.S. Supreme Court in the Rucho redistricting case.

In addition, the 14th and 15th Amendments give Congress the power to eliminate racial discrimination in voting and the democratic process, such as restricting or creating barriers to voting, partisan gerrymandering and felony disenfranchisement. Though we had record voter turnout in the 2020 elections, voters continue to be disenfranchised because of long lines, broken voting machines and polling-place closures, disproportionately affecting black, brown and indigenous communities.

Republicans shifted their message, thanks to lessons learned from their attempts to overturn the 2020 election. Several of those lawsuits cited then-Chief Justice William Rehnquist’s brief argument, in Bush v. Gore, that states’ presidential electors were chosen “in such Manner as the Legislature thereof may direct.” 

Numerous pro-Trump lawsuits argued that the language was that literal: Any election reform that didn’t get stamped by the state legislature was unconstitutional, and illegal. The term “illegal votes,” which evokes ballot-stuffing or fraud, was deployed by Republicans such as Rep. Mike Kelly of Pennsylvania to mean any ballot cast under a procedure that the legislature didn’t approve.

“It’s an argument that I take seriously, because it’s being made by serious lawyers in some instances,” said Marc E. Elias, the Democratic attorney who handled much of the party's pre- and post-election litigation. “But in the end, it turns into a caricature of an argument. It’s just not the case that a legislature is immune from determining whether a law is unconstitutional or not. If that was true you couldn’t strike down a literacy test, or a law that was racially discriminatory.”

Both supporters and opponents alike recognized that the Fifteenth Amendment’s Enforcement Clause significantly altered the balance of powers between the federal government and the states, giving Congress broad authority to guarantee African Americans the right to vote and to eradicate racial discrimination in the electoral process. Congressional opponents of the Fifteenth Amendment objected that “when the Constitution of the United States takes away from the State the control over the subject of suffrage it takes away from the State the control of her own laws upon a subject that the Constitution of the United States intended she should be sovereign upon.” Opponents of the Fifteenth Amendment, both in Congress and in the states, worried that Congress would use its enforcement power to “send their satraps into every election district in this country,” and put into effect “registry laws and laws regulating elections at our own doors, enacted by a power we cannot reach or control.” In their view, “[n]othing could be more loose and objectionable than the clause which authorizes Congress to enforce the restraint upon the States by ‘appropriate’ legislation . . . . Under this phraseology, Congress is made the exclusive judge.” 

These concerns over state sovereignty were flatly rejected by the Framers of the Fifteenth Amendment and the American people, who explicitly conferred on Congress the power to enact legislation to protect the right to vote free from racial discrimination. In giving Congress the power to protect the right to vote, the Fifteenth Amendment specifically limited state sovereignty.

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As the debates reflect, the Framers of the Fifteenth Amendment specifically recognized that a broad legislative power to protect the right to vote against all forms of racial discrimination—both denials and abridgements—was critical to ensuring “the colored man the full enjoyment of his right.”

In reality, the Constitution grants Congress the sweeping authority to regulate federal elections “at any time,” including through the preemption of state election laws. Republicans must know this, because in the run-up to the 2020 election, GOP senators introduced legislation that would overturn state laws ensuring that all mail ballots would be counted. Terrified that the pandemic-related expansion of mail voting might aid Democrats, Republicans decided to demonize a practice that was historically favored by their own voters. After the election, Republicans went even further: Conservative senators and representatives voted to throw out the results from multiple states, a move that would disenfranchise millions of Americans who cast lawful ballots under valid state election laws. Republicans’ new rule appears to be that Congress may indeed regulate federal elections but only when it wants to either suppress or nullify votes.

GOP state attorneys general, too, are eager to repeal state election results that they dislike. Many of the attorneys general who signed on to Wednesday’s letter also supported Texas’ bogus attempt to set aside the 2020 results. (They are also members of the Republican Attorneys General Association, the cancerous hate group that actively fomented insurrection on Jan. 6.) These partisans’ farcical lawsuit asked the Supreme Court to throw out every vote in four states won by Joe Biden, then direct each state’s legislature to declare Donald Trump the winner. Back then, they claimed that the Supreme Court, as in nine unelected justices, hold the authority to nullify millions of votes cast pursuant to valid election laws. But now they argue that democratically elected lawmakers in Congress have no power to exercise their constitutional prerogative to create uniform standards for federal races.

The [Elections] Clause’s substantive scope is broad. “Times, Places, and Manner,” we have written, are “comprehensive words,” which “embrace authority to provide a complete code for congressional elections,” including, as relevant here and as petitioners do not contest, regulations relating to “registration.” In practice, the Clause functions as “a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to pre-empt state legislative choices.” The 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.”