Republicans might support this more modest voting proposal

State legislatures are busy revoking voting rights their citizens successfully exercised in last year’s election. Although Congress is stalled on sweeping electoral reform legislation, the current voting rights emergency should cause Congress to consider a stopgap measure.

The House has passed HR 1, which is 800 pages of proposals aimed at improving U.S. elections. If enacted into law, it would negate efforts to undermine voting rights. But given the existence of the filibuster, the measure as written isn’t going to pass the Senate.

What about a much-narrower bill, addressing only the emergency at hand? Are there 10 Republican senators willing to support a targeted law, to constrain state legislatures from dismantling voting rights previously granted?

Here’s why they should: First, a well-crafted law would not entirely bar state legislatures from altering voting rules — it would just require a legislature to show sufficient justification for the change. There could also be built-in flexibility: The greater the new impediment on the opportunity to vote, the stronger the state’s showing would need to be. The flip side would be that as long as the change in state law only minimally restricts voting, the state would have significant leeway.

Federal courts have been enforcing such standards for years under the Voting Rights Act and the Constitution’s equal protection clause. They would understand how to apply this new anti-rollback decree.

For example, if a state still offered a robust period of in-person early voting, with plenty of times and places, then a state could justify a decision to curtail vote-by-mail by offering a nonpartisan explanation for why, after the pandemic is over, it would prefer to have ballots cast in person. This evaluation of adequate alternatives, to make sure states impose no danger of disenfranchisement, contrasts sharply with the tack taken by HR 1, which would require states to provide in-person early voting and no-excuse vote-by-mail.

Second, the credible threat of a much more intrusive law might bring enough moderate Republicans to the bargaining table. Right now, if there’s no realistic fear that Democrats would actually eliminate the filibuster to adopt HR 1, there’s no reason for Republicans to negotiate. But should two senators signal willingness to entertain filibuster reform if Republicans remain obstinate on voting rights, then GOP senators would see it in their interest to compromise.

Third, 10 reasonable Republicans might actually support, on the merits, a suitably tailored voting rights law. Whether for the sake of their legacies or because they believe preservation of adequate voting opportunities is a good idea, enough GOP senators might favor a calibrated rule that prevented state legislatures from going too far but did not cause Congress to get overly intrusive.

Congress could limit this law’s applicability to federal elections, leaving states unhindered in regulating elections exclusively for state and local offices — another bargaining chip to woo conservatives.

The basic concept is what lawyers call nonretrogression. It means that the government can’t take away rights, or make matters worse, without providing a good enough reason.

Nonretrogression is at the heart of Section 5, the Voting Rights Act provision that was nullified by the Supreme Court in its 2013 Shelby County v. Holder decision. The court voided that provision because Congress applied it to some states and not others, and never updated this “coverage formula” in light of new circumstances. The court did not negate the principle of nonretrogression itself.

The Voting Rights Act, designed to eradicate racial bias in voting, pursues the concept of nonretrogression through the lens of racial disparities. But the idea of nonretrogression can also apply to all voters regardless of race. If every voter suffers a setback in the opportunity to cast ballots, versus how it was previously, then nonretrogression would require the state to defend that move — and without considering comparative racial impact. It might be more prudent for Congress to craft a new nonretrogression provision in racially neutral terms.

There’s an argument that the Constitution implicitly contains this kind of nonretrogression principle, and thus federal courts already have power to enforce it. But a new federal statute would put the principle on firmer footing, making the judicial duty to protect voting rights unmistakably clear. Given the speed with which state legislatures are acting, Congress should take what steps it can to ensure that everyone who is entitled to vote can do so.

Foley