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Voting Rights and Fate of the Filibuster Set Senate Showdown on Capitol Hill

January 12, 2022 by Dan McCue
Voting Rights and Fate of the Filibuster Set Senate Showdown on Capitol Hill
President Joe Biden speaks in support of changing the Senate filibuster rules that have stalled voting rights legislation, at Atlanta University Center Consortium, on the grounds of Morehouse College and Clark Atlanta University, Tuesday, Jan. 11, 2022, in Atlanta. (AP Photo/Patrick Semansky)

WASHINGTON — The Senate only just returned to work a few days ago, but already it’s embroiled in the knock-down, drag-out brawl of the year.

The “it,” of course, is the raging war of words over Senate Democrats’ effort to pass a sweeping voting rights bill and their recent willingness to amend the filibuster to do so.

Since shortly before the Christmas break, Senate Majority Leader Chuck Schumer has vowed the Senate will consider and pass a sweeping elections reform bill intended to reverse scores of laws adopted in mostly red states across the country that critics say make it hard for younger, poorer and non-white Americans to vote.

Schumer himself has referred to the state laws as “Jim Crow 2.0” and has promised the Senate would act “to support our democracy and protect voting rights.”

His Republican counterparts, who presently have the power to filibuster and block the effort, have said not so fast.

Now Schumer and the Democrats are on the verge of creating an as-yet unspecified “carve-out” of the Senate filibuster rule that would allow the election reforms to pass without a single Republican vote.

And that’s led to Republicans being in a full lather over whatever’s about to come next.

“Top Democrats Want to Take Over the Senate to Take Over Elections to Take Over America,” the heading of one press release declared this week.

And on Monday, Senate Minority Leader Mitch McConnell, R-Ky., directly assailed Schumer for bringing what the Republican painted as an unnecessary crisis to pass in the chamber.

“This week, on this floor, we are poised to witness something that has never happened before in living memory: An attempt to attack the core identity of the Senate by a sitting Senate Majority Leader,” McConnell said.

“Leading Democrats say they want to break the Senate because of a sinister anti-voting plot that is sweeping America. This is totally fake. It does not exist,” McConnell said, asserting that “the current control of Congress and the White House were decided in 2020 by the highest turnout in 120 years — 94% of voters said voting was easy.”

“More Americans say current voting laws are too lax than say they are too restrictive,” he maintained.

“Confronted by the facts, the Democratic leader says they’re irrelevant. He says his entire nuclear push is occasioned by what a few states did in 2021. But this is nonsense,” the Republican leader said. “None of this was occasioned by what state legislatures did in 2021. This is a yearslong quest for power in search of a pretext.”

Then again, facts are often fungible, especially in seats of political power.

Since the 2020 general election, according to the political analysis website FiveThirtyEight, 52 restrictive voter laws have been passed in 21 states, including nine in the state of Arkansas alone.

Most of these limit options to vote in some way, either cutting the number of days allotted for early voting or making it more difficult to vote by mail.

In Texas, SB 1, passed during a special session of the state legislature and after Democratic legislators literally ran away for several weeks in order to prevent the body from having a quorum, new laws empower partisan poll watchers and forbid election officials from prosecuting them for behavior that once would have been considered inappropriate.

In Georgia, state officials even went so far as to criminalize handing out water to voters standing in long lines.

McConnell calls attacks against these actions “hysterical” and “fake,” and accuses Schumer of openly scheming with “nuking” the Senate rules if ever he was in the position to do so.

According to McConnell, Schumer has been at it for years.

And on Tuesday afternoon, Sen. Roy Blunt led about two dozen Republicans in making a pre-emptive jab at the “end” of the filibuster.

In his opening remarks at a lunchtime press conference, Blunt accused Democrats in general of not having actually read the laws they’re objecting to before unilaterally deciding “that somehow state legislators are universally committed to voter suppression.”

“Voter suppression, frankly, is never a very good political tactic,” he said.

While Blunt conceded there could be exceptions, he said in “state after state” that he’d looked at, the voting laws were changed due to lessons learned during the pandemic.

“In virtually every case,” he said, “when the election was over, these lawmakers looked at what had been done [during] the pandemic” and simply asked, ‘How much should we keep?’ And ‘What don’t we need anymore?’”

Other Republicans stepping up to the microphone noted that the last time Senate Democrats were in the minority, 32 of them signed a letter demanding the legislative filibuster stay in place. 

Less than four years ago, several noted, Schumer himself said nuking the filibuster would “turn what the Founding Fathers called the cooling saucer of democracy into the rubber stamp of dictatorship.”

McConnell himself also quoted Schumer circa 2016, recalling him saying that to disarm with the filibuster would “make this country into a banana republic … a doomsday for democracy.” 

“Now he wants to trigger that doomsday himself,” the Republican leader said.

“When I was majority leader, some in my own party urged me to break the Senate for our own party’s short-term gain. My answer was one word: ‘No,’” McConnell said.

“We’re going to spend all week sounding the alarm on the radical takeovers that some Democrats want to pull off,” he added.

Of course, much of this could be dismissed as playing to the party’s base, whipping up core voters just months before a decisive midterm election, but there’s still a wild card in the mix.

Not every Democrat has declared themselves ready to pull the rug from beneath the filibuster.

Sens. Joe Manchin, D-W.Va., and Kyrsten Sinema, D-Ariz., have both resisted changes to the Senate’s 60-vote threshold.

(Current rules require 60 votes to advance most legislation — a threshold that Senate Democrats can’t meet alone because they only have a 50-50 majority with Vice President Kamala Harris to break ties.)

Others, like Sen. Chris Coons, D-Del., and Mark Kelly, D-Ariz., indicated as of Monday that they were still considering which way to vote on the issue.

Then there are others, like Sen. Jon Tester, D-Mont., who have expressed support for moving to a so-called “talking filibuster” — think Jimmy Stewart at the climax of “Mr. Smith Goes to Washington” — but might not like some other form of carve-out.

And those wavering few may well be who Republicans will be talking to most this week — even if from a distance.

“If the Democrats protected this institution [the last time the fate of the filibuster was up for grabs], I think the Republicans should as well,” Sen. Ted Cruz said on Tuesday. “And to be clear, the last time this was an issue, the Republicans had the White House and the Senate and the House and had every ability to do exactly what Chuck Schumer wants to do right now. And the Republican Party didn’t. 

“This is a power grab, but it’s not just a power grab,” Cruz continued. “It’s a power grab to enable a power grab. What Schumer wants to do is a takeover of elections … and it’s wrong and it’s an abuse.”

Tired of Being Quiet

President Joe Biden had largely stayed out of the filibuster debate — that is, until a presidential trip to Atlanta, Georgia, on Tuesday.

Speaking on the grounds of Morehouse College and Clark Atlanta University, Biden declared that he is “tired of being quiet” about the matter and endorsed Schumer’s plan to change the filibuster rule.

In doing so, he described the currently stalled voting rights legislation as the last best chance to choose “democracy over autocracy.”

Biden, a longtime senator himself, gave no indication of how he would personally change the filibuster, instead saying he’d support “whatever way they need to be changed to prevent a minority of senators from blocking action on voting rights.”

“Sadly, the U.S. Senate, designed to be the world’s greatest deliberative body, has been rendered a shell of its former self,” he continued. “It gives me no satisfaction in saying that, as an institutionalist, as a man who was honored to serve in the Senate. But as an institutionalist, I believe the threat to our democracy is so grave that we must find a way to pass these voting rights bills.

“Debate them, vote, let the majority prevail,” the president said. “And if that bare minimum is blocked, we have no option but to change the Senate rules, including getting rid of the filibuster for this.”

Preceding him at the podium, Vice President Harris warned that to stand by as state after state passed more restrictive voting laws, would create “a danger of becoming accustomed to these laws, a danger of adjusting to these laws as though they are normal.”

“There is nothing normal about a law that makes it illegal to pass out water or food to people standing in long voter lines,” she said.

“Nowhere does the constitution give a minority the power to unilaterally block legislation. The Senate must act. We cannot tell [our kids and grandkids] that we let a Senate rule stand in the way of our most fundamental freedom,” she said later.

Majority Leader Schumer has set next Monday’s Martin Luther King Jr. Day as a deadline to either pass voting legislation or consider revising the rules around the chamber’s filibuster blocking device.

On Tuesday, Biden told his audience in Atlanta, Georgia, “the next few days, when these bills come to a vote, will mark a turning point in this nation.”

“Will we choose democracy over autocracy, light over shadow, justice over injustice? I know where I stand. I will not yield. I will not flinch,” he said. 

“I will defend your right to vote and our democracy against all enemies foreign and domestic. And so the question is where will the institution of the United States Senate stand?” he added.

So What’s in the Voting Rights Bill?

In response to the voting laws being passed in the states, Congress introduced two voting rights bills. The first was the John Lewis Voting Rights Advancement Act.

Named for the civil rights icon and former Georgia congressman who died in 2020, the John Lewis Voting Rights Advancement Act was primarily in response to recent decisions by the U.S. Supreme Court that effectively weakened the protections extended to minority voters by the 1965 Voting Rights Act.

The act, signed into law by then-President Lyndon Baines Johnson, barred voting restrictions based on race.

Further, Section 5 of the law required states or counties with a history of discrimination to “preclear” any proposed changes to voting procedures with the Justice Department.

Supporters of the 1965 Voting Rights Act contend the law worked well, preventing hundreds if not thousands of discriminatory changes to voting and election laws over the years.

But in 2021, the Supreme Court ruled in the case Shelby County v. Holder that Section 4 of the act, the section that set forth the formula for determining which states and counties were subject to the act, was outdated.

The ruling effectively voided the Section 5 requirement until Congress acts to replace the old formula with a new, workable model.

The John Lewis Voting Rights Advancement Act was the House’s attempt to establish a new coverage formula. 

The text of the act says 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. 

In addition, a state would no longer need preclearance if it has no voting rights violations for 10 years. 

The House passed its version of the John Lewis Voting Rights Advancement Act in August in a party-line vote, 219-212. But the legislation has languished in the Senate since it was sent to the chamber on Sept. 14, 2021.

Senate Minority Leader Mitch McConnell has argued the act is unnecessary because it’s already against the law to discriminate in elections based on race.

The other, more sweeping bill before the Senate is S. 2747, the Freedom to Vote Act, which includes elements of the John Lewis Voting Rights Advancement Act, but goes further in an attempt to respond to voting restrictions passed by the states over the past 12 months.

Introduced by Sen. Amy Klobuchar, D-Minn., the bill now has 49 co-sponsors.

Voter Registration

The bill directs states to automate voter registration, bringing it up to a “21st Century” standard. This means, among other things according to the bill’s text, automatically registering eligible voters when they secure a driver’s license.

“Unless that individual declines to register to vote, or is found ineligible to vote, the individual will be registered to vote or, if applicable, the individual’s registration will be updated,” the bill says.

The bill also includes a provision requiring voter registration information to be included in all federally assisted leases and mortgage applications.

Another provision requires states to allow voters to register to vote “at any time” on official state and local government websites.

The bill also mandates that all states allow voters to register to vote at their polling place on the same day they cast a ballot in a federal election.

Early Voting

The Freedom to Vote Act provides that a minimum of 15 days of early voting be established nationwide, ending no earlier than the second day before the date of the election.

All polling places established for early voting would have uniform hours under the law, each being open for a minimum of 10 hours, and offering at least some time for voters to cast ballots before 9 a.m. and after 5 p.m. 

A New National Holiday

The act makes Election Day — defined as the Tuesday next after the first Monday in November in each even-numbered year — a national holiday starting in November 2022.

Mail-in Ballots

One of the major goals of the bill is to ensure uniform availability of absentee or mail-in voting for all voters. Among other things, it forbids states from imposing conditions or requirements on the eligibility of the individual to cast the ballot by absentee ballot by mail.

“A state may not require an individual to submit any form of identifying document as a condition of obtaining or casting an absentee ballot,” the bill says.

In addition, it says that states “may not deny a voter a ballot or the opportunity to cast it on the grounds that the voter does not possess a current and valid driver’s license number or a social security number.”

Voter ID

The bill would also set up a national standard for voter identification. It mandates states treat “any applicable identifying documents as meeting … the voter identification requirement.”

It also states that “notwithstanding the failure to present an applicable identifying document, [the state] shall treat an individual desiring to vote in person in an election for federal office as meeting such voter identification requirement[s] if the individual presents the appropriate state or local election official with a sworn written statement, signed in the presence of the official by an adult who has known the individual for at least six months under penalty of perjury, attesting to the individual’s identity; if the official has known the individual for at least six months; or in the case of a resident of a state-licensed care facility, an employee of the facility confirms the individual’s identity.”

It also allows citizens who don’t have a valid ID to cast a provisional ballot so long as they present the “appropriate state or local election official with a sworn written statement, signed under penalty of perjury, attesting to the individual’s identity.”

Other Provisions

The act would establish protections for election officials against intimidation and partisan interference, restricting their removal to only certain circumstances —  gross negligence, neglect of duty or malfeasance in office.

To further ensure election integrity, the Freedom to Vote Act would require states to use voting systems with a verifiable paper trail. 

It also limits removing voters from voter rolls and establishes protections for voters against harassment and challenges by partisan poll watchers.

The bill declares that the right of a U.S. citizen to vote in any election for federal office shall not be denied or abridged because that individual has been convicted of a criminal offense unless, at the time of the election, such individual is serving a felony sentence.

The bill establishes certain federal criminal offenses related to voting. In particular, the bill establishes a new criminal offense for conduct (or attempted conduct) to corruptly hinder, interfere with or prevent another person from registering to vote or helping someone register to vote.

Additionally, the bill sets forth provisions related to election security, including by requiring states to conduct post-election audits for federal elections. The bill outlines criteria for congressional redistricting and generally prohibits mid-decade redistricting.

Finally, the bill addresses campaign finance, including by expanding the prohibition on campaign spending by foreign nationals, requiring additional disclosure of campaign-related fundraising and spending, requiring additional disclaimers regarding certain political advertising, and establishing an alternative campaign funding system for certain federal offices.

The View From the House

Speaking with reporters on Tuesday, House Majority Leader Steny Hoyer described the passage of the Freedom to Vote Act in the Senate as absolutely “critical” given how “legislature after legislature after legislature has tried to restrict voting rights.”

“In the House we passed HR 1, which dealt with nonpartisan ways of drawing election districts in America, so that they reflect communities and people in a fair and effective way,” Hoyer said. “And we passed the John Lewis Voting Rights Advancement Act, which dealt with the Supreme Court decision which undermined the 1965 Voting Rights Act.

“And we’re very hopeful this bill can be passed. We think it’s a good bill and will be of substantial help in preserving and protecting democracy,” he said.

Asked about Senate efforts to do away with the filibuster, a mechanism the House does not have, Hoyer said, “House leaders would certainly support an exception to the rule.”

Dan can be reached at dan@thewellnews.com and at https://twitter.com/DanMcCue

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