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Can The Federal Government Stop States' Restrictive Voting Laws?

AUDIE CORNISH, HOST:

The fight over voting in Texas is far from over, even though Democrats in that state stopped a restrictive voting law from passing on Sunday. The Republican governor, Greg Abbott, is threatening to withhold lawmakers' pay in retaliation. He's also promising to call a special session to try and pass the bill. Now, this fight is happening on the state level, but Texas isn't the only one trying to put limits on the access to the ballot. Several Republican-led states have passed or are trying to pass more restrictive voting laws, Georgia and Florida to name a couple. To talk about what role the federal government has in this process, we've called on Rick Hasen. He's professor of the University of California, Irvine (ph) and author of the book "Election Meltdown: Dirty Tricks, Distrust And The Threat To American Democracy."

Welcome back to the program.

RICK HASEN: It's great to be with you.

MARY LOUISE KELLY, HOST:

Now, just to give people a sense of the kinds of laws we're talking about, some of them restrict the early voting laws. Some of them impose new or updated voter identification requirements. Some of them are about purging voters from registration lists. And the one people are paying a lot attention to is bills that kind of bolster an official's authority to override the decision of local election officials - right? - when it comes to maybe some ballot announcements. So all of this is state. Where does that leave the White House?

HASEN: Well, first of all, the federal government, especially Congress, has the ability to pass laws regulating congressional elections that override state laws. It's right there in the Constitution in Article I, Section 4. So legislation would be the best way to deal with it. Congress is having trouble...

CORNISH: And just to set that up for people, they're having more than trouble, right? I mean, languishing in the Senate is this For the People Act. A lot of people are looking at Senator Manchin in West Virginia because he is not inclined to vote for the bill as it is presented by Democrats right now. So let's say you have to table Congress for a minute. Is there any other thing that the executive branch can do?

HASEN: Well, one important thing is that the Department of Justice can help enforce voting rights laws, part of the Voting Rights Act, which is up right now before the Supreme Court in a case called Brnovich. We're going to learn by the end of this month, likely, whether that's going to remain an important tool for policing laws that make it harder for minority voters to be able to register and to vote. And so a pretty aggressive Department of Justice, as it did when it went after Texas's voter UD law some years ago successfully in bringing a challenge under Section 2 of the Voting Rights Act - that's probably the most important tool that the executive branch has to deal with these kinds of laws.

CORNISH: The president has also signed an executive order in this area. Can you talk about what that is and how, if any way, it makes a difference?

HASEN: Well, executive orders can just tell the federal government to be enforcing voting laws. You know, we care about things like cybersecurity, so it can be directing the parts of the government that deal with security to do that, direct the Department of Justice. But you may remember back when Trump was president, there was all kinds of concerns about, what could the president do to interfere with elections? And it turns out the president directly has very little power over how elections are run. They're run by states and localities subject to the rules imposed by Congress. So this - really, the most important thing that Joe Biden can do, is get Joe Manchin in a room, figure out what he wants to get a voting bill through and then push that through Congress.

CORNISH: In a way, we know what he wants. The senator has promoted this idea of basically restoring the part of the Voting Rights Act known as preclearance that was struck down by the Supreme Court that said, look. All of these states that used to have kind of Jim Crow-era voting barriers - you now have to go to the federal government to get permission when you want to change your laws. And he wants to expand that to the rest of the country. Is that - is there an appetite for that?

HASEN: Well, I think there's two problems. One is, you know, a political problem. Can you even get Manchin to agree that not only would he support the legislation but overturn the filibuster rule in order to get a bill through? Because you need 60 votes ordinarily to get something through the Senate. So there's two hurdles there. But there's also a legal hurdle. It's not clear that the Supreme Court, which struck down the earlier preclearance provision in 2013 in the Shelby County vs. Holder case, would uphold nationwide preclearance. They might see it as tilting the scale too much in favor of federal control. So I'm hoping that there are other things besides preclearance, although I think that is necessary - other things besides preclearance that Manchin can get behind, like requiring paper ballots in every state so that if there is a dispute over who won an election, there's a tangible record that could be counted by a neutral court or a neutral body.

CORNISH: Fundamentally, do you have the same fears that some liberals have that this is, like, laying the groundwork for an election that could be overturned or challenged in the future?

HASEN: Yeah, I think you have to realize that there are two different issues going on at once. One is voter suppression, making it harder for people to register and vote. But perhaps an even bigger danger is the danger of election subversion, the idea that we might make it easier for partisans to mess with how votes are counted and how election winners are declared. That's really the No. 1 thing on the agenda for 2022 and 2024.

CORNISH: That's Rick Hasen, law professor of the University of California, Irvine.

Thank you for your time.

HASEN: Thank you. Transcript provided by NPR, Copyright NPR.