President Joe Biden's campaign promise to update the Voting Rights Act has hit a roadblock in the Senate, threatening a key campaign promise made by Biden about civil rights.

Senate Democrats on Nov. 3 failed to win enough votes to move forward the John Lewis Voting Rights Advancement Act, a bill designed to prevent states from passing voting laws that discriminate against minority voters. The bill is named for the Georgia congressman, civil rights leader and voting-rights champion who died in 2020. 

During the campaign, Biden promised to pass an earlier version of the legislation, one of many racial justice promises made on the campaign trail. The Biden administration said Nov. 3 that it supported the latest version as well. 

The Senate voted 50-49, falling short of the 60 votes needed to move forward. Sen. Chuck Schumer, the Democratic leader from New York, moved his vote to "no" as part of a procedural move so he could make a motion to reconsider. Sen. Lisa Murkowski, R-Alaska, joined the Democrats in support of moving forward with debate.

"Every American deserves equal opportunity to participate in our electoral system and political process, and this bill provides a starting point as we seek broader bipartisan consensus on how best to ensure that," Murkowski said in a statement before the vote.

Murkowski and Sen. Joe Manchin, D-W.V., had announced their support after the bill was revised in recent days. Among the changes, the most recent version eliminated a requirement that areas with growing minority populations get preclearance for laws that limit handing out food or water to people waiting in line to vote.

Republicans have described the bill as federal overreach and complained it would make it too easy for plaintiffs to challenge state election laws that Republicans say are designed to prevent fraud. There is no evidence of widespread fraud that would have changed the outcome of the 2020 election.

Sen. Mitch McConnell, the Republican leader, called the John Lewis bill "unnecessary" and said that "it's against the law to discriminate in voting on the basis of race already."

The 1965 Voting Rights Act barred voting restrictions based on race. Section 5 of the law required states or counties that had history of discrimination to preclear any proposed changes in their voting procedures with the federal government. To get approval, the jurisdictions had to prove that the change in voting laws would not harm minority voters. 

But in 2013, the preclearance provision was essentially nullified by the U.S. Supreme Court ruling Shelby vs. Holder. The court ruled that the coverage formula in Section 4 of the Act, which was used to determine which jurisdictions were covered under Section 5, was outdated. 

The ruling rendered that part of the law moot but gave Congress an invitation to "draft another formula based on current conditions. … Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions."

The John Lewis Act would have established a new coverage formula. It said that a state will be covered under the formula if, during the 25 previous years, there were 15 or more voting rights violations, or 10 or more voting rights violations if at least one was committed by the state itself. A state would no longer need preclearance if it has no voting rights violations for 10 years. 

The legislation also included other provisions such as penalties for threatening election workers, allows certain individuals including family members to return a sealed ballot of a voter on Indian lands and requires states to provide notice if they make changes to voting rules or procedures within 180 days of a federal election. The House version of the legislation passed in August.

This was the second recent vote by the Senate in which Republicans rejected Democrats' efforts to pass sweeping changes to election laws. In October, Republican opposition halted senators from moving forward the Freedom to Vote Act, a bill that would have set uniform rules nationwide for voting by person and by mail. Republicans said that states should retain their power to set their own voting laws.

Biden can't pass an order on his own to update the preclearance formula, said University of Baltimore law professor Gilda Daniels, who worked in the voting section of the Department of Justice during the Clinton and Bush administrations.

"Congress has to act," said Daniels, who testified in favor of voting rights legislation for a House committee in June. "We know in the Shelby County vs. Holder case the Supreme Court said Congress could fix this but they haven't. His executive power alone can't fix this. Congress has to pass the legislation and they just have refused to do so."

University of California Irvine law professor Rick Hasen agreed that there is nothing Biden could do on his own to update the preclearance formula. 

"Shelby County talked about whether such a law is in *Congress's* power. It was never about the executive, other than signing a bill restoring preclearance and then implementing it once signed," Hasen said in an email, adding asterisks for emphasis.

Unless Democrats get rid of the filibuster or carve out an exception for voting rights to allow Democrats to proceed with a simple majority, there isn't a path forward for Biden in the current Senate to update the preclearance formula.

Biden's promise to update the Voting Rights Act has hit a roadblock in the Senate. We rate this promise Stalled.

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When Democrats took the White House and control of Congress, they increased their chances of delivering on promised legislation to expand and protect voting rights.

In March, the House passed H.R. 1, known as the For the People Act, which combines proposals for voter registration, absentee voting, in-person voting, campaign finance and ethics related to federal elections. The bill also includes a provision reaffirming Congress' commitment to restoring provisions of the 1965 Voting Rights Act. 

President Joe Biden, who campaigned on a promise to update the Voting Rights Act, called H.R. 1 "landmark legislation" that will protect the right to vote and strengthen democracy. Democrats formally introduced the bill in the Senate in March, but it's unlikely it can pick up enough Republican support to get past a filibuster. The Democrats' effort in Congress counters a tide of Republican-backed bills in state legislatures that would restrict voting access.

The 1965 Voting Rights Act barred voting restrictions based on race and required certain jurisdictions that had history of discrimination to preclear any proposed changes in their voting procedures with the federal government. 

In 2013, the Supreme Court voided the preclearance requirement. But a bill backed by Biden, the John Lewis Voting Rights Advancement Act, would restore it under a new process. The bill — named for the former Georgia congressman, civil rights leader and voting-rights champion who died in 2020 — stalled in the Senate in 2020, but Democrats are expected to reintroduce it.

"It's an effort to address what (the Supreme Court) held was an unconstitutional defect in the old provision," Dale Ho, director of the ACLU's Voting Rights Project, told PolitiFact.

Separately, Biden signed an order March 7 to promote voting access. The order directs federal agencies to submit plans for promoting voter registration and participation, and aims to expand ballot access for certain groups including military and overseas voters. 

Biden's promise to update the Voting Rights Act will face hurdles in the Senate, but for now we rate this promise In the Works. 

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