One year ago today, an angry mob stormed the U.S. Capitol, intending to stop the certification of the 2020 presidential election. Since then, many have raised the alarm that the Capitol Riot was a test run for the subversion of American democracy. But Democrats are not really any closer to advancing legislation that would safeguard against that looming possibility.
Majority Leader Chuck Schumer is using the Capitol Riot anniversary and Martin Luther King Jr. Day to deliver an ultimatum: Either voting rights bills pass on a bipartisan basis by the holiday on January 17, or Senate filibuster rules will change to enable passage. But Senate Democrats have been futilely pushing voting rights bills all year, despite not having the 60 votes needed to overcome a Republican filibuster, and despite not having the 50 votes needed to end or change the filibuster rule, if only for voting rights. And despite Schumers threat, they appear no closer to either of those mileposts now.
The two voting rights bills being discussed are the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. The Freedom to Vote Act is a compromise between Sen. Joe Manchin (D-WV) and the rest of the Senate Democratic Caucus that takes many elements from H.R. 1, the omnibus voting rights bill that has been floating around liberal circles for several years. It includes helpful policies to expand voter access and participation, like automatic, online, and same-day voter registration; a public holiday for Election Day; a required 15 days of early voting; standards for wait times in line to vote; promotion of vote-by-mail; allowance of provisional ballots cast in the wrong precinct to be counted; prevention of voter caging and purging; and some minor campaign finance changes. The John Lewis bill would restore the parts of the original Voting Rights Act that were gutted by the Supreme Court in Shelby County v. Holder, enabling the Justice Department to once again preclear voting changes in states with a history of suppression and discrimination.
Both of these are noble efforts that will improve voter access, but they do not address the biggest threat to elections and democracy. That would be the effort in some conservative states to remove local election administrators, arrogate counting and certification decisions to partisan legislatures (including appointing their preferred slate of electors), and essentially determine the winners of elections after the votes are cast. (The fact that Mitch McConnell is insistent that state legislators would never overturn elections should in itself set off a bunch of alarm bells.)
The Freedom to Vote Act does contain some restrictions on removing election administrators. But theyre pretty narrow, creating a private right of action for administrators to sue over firing and the ability for the Justice Department to intervene. In theory, these options could help, but it would be one side against another in court. And the bill doesnt really contemplate or deal with state-level changes to certification rules, which represent the greatest danger.
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The real problem, both immediate and long-term, is that the path to passage is completely unclear. Youre not going to get Republican votes for either of these bills. That means breaking the filibuster, but Manchin and Sen. Kyrsten Sinema (D-AZ) have repeatedly said they wouldnt do that, in Sinemas case as recently as Wednesday. On Tuesday, Manchin made some noise about smaller changes to Senate rules, which wouldnt eliminate the filibuster hurdle but would potentially make it harder to sustain. Those changes include removing the 60-vote cloture requirement on the motion to proceed to considering legislation (ending one of the two filibuster opportunities on any bill, but keeping the other one, the supermajority requirement for passage), making the threshold three-fifths of those voting instead of 60 votes (meaning opponents would have to show up to oppose), and implementing a talking filibuster where opponents would have to hold the floor rather than painlessly oppose.
Some of these would have more of an impact than others; the talking filibuster in particular would be extremely interesting. But the bigger point is that youd need a way to change the rules in order to establish them, through a majority-vote process popularly known as the nuclear option. And Manchin doesnt appear to support that. He wants to find changes to Senate rules that Republicans can agree with; youd need 67 votes under regular order to make rules changes. This is Manchins absolute preference Id have to exhaust everything in my ability to negotiate with people to decide otherwise, he told reporters.
There still arent 60 votes for any bill that would safeguard elections, and there still arent 50 votes to break down the Senates rules barriers to allow such a bill to pass by a simple majority.
I have news for Sen. Manchin: Republicans will not agree to any changes. The only way they can happen is through the nuclear option. So, if Manchins disinclined to go there, then theres no use considering what he supports, since that support is purely theoretical.
Can anything on voting get 60 votes? On Tuesday, Sen. John Thune (R-SD), a member of the Republican leadership, said that the party would have some interest in updating the Electoral Count Act, which has governed federal certification of presidential elections since 1887. The act as written is vague on whether a vice president can refuse to certify electors, which is what Trump wanted his VP to do last year. Republicans might agree to make clear in the statute that federal certification is largely ceremonial.
Theres been a little talk about doing this, including by Senate Minority Leader Mitch McConnell. But its clearly being put forward by Republicans as a substitute to wide-ranging voting rights legislation. And as a reform, it does nothing to improve access to the ballot; more important, it doesnt deal with the possibility that electors might be determined by partisan legislators in the states after the fact. If youre going to rig the game and say, Oh, well count the rigged game accurately, what good is that? asked Schumer, seemingly uninterested in moving that bill. Marc Elias, the Democrats main election lawyer, also basically came out against Electoral Count Act reform as an individual solution on voting rights, as did the White House Wednesday night.
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So there still arent 60 votes for any bill that would safeguard elections, and there still arent 50 votes to break down the Senates rules barriers to allow such a bill to pass by a simple majority. That makes the next couple of weeks in the Senate an exercise in wheel-spinning, unless something changes.
Meanwhile, the bill that contains Bidens domestic agenda, the Build Back Better Act, must wait in line while this potentially performative exercise on voting rights gets worked out. Manchin is the holdout here, and he said Tuesday that there have been no talks on Build Back Better recently.
So bills that cant pass are taking up the next couple of weeks, and bills that can only pass with Manchins blessing arent been discussed with Manchin.
Unfortunately, the bill we really need to passa constitutional amendment abolishing this godforsaken U.S. Senateis not on the menu.