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The Filibuster vs. Election Reform and Voting Rights

The stakes are high for democracy and for the Democrats.
March 10, 2021
The Filibuster vs. Election Reform and Voting Rights
Large boxes of envelopes are seen as absentee ballot election workers stuff ballot applications at the Mecklenburg County Board of Elections office in Charlotte, North Carolina on September 4, 2020. - The US election is officially open: North Carolina on September 4, 2020 launched vote-by-mail operations for the November 3 contest between President Donald Trump and Joe Biden, which is getting uglier by the day. Worries about the unabated spread of the coronavirus are expected to prompt a major increase in the number of ballots cast by mail, as Americans avoid polling stations. (Photo by Logan Cyrus / AFP) (Photo by LOGAN CYRUS/AFP via Getty Images)

Here’s the Democrats’ inescapable reality: They must pass legislation protecting voting rights and ballot access, or allow the GOP to cheat its way to victory in 2022 and beyond—subverting democracy to empower a minority.

For Republicans, democracy is the problem. If too many voters turn out—particularly nonwhites—Democrats prosper. That’s what Trump truly meant when he told CPAC, “We have a very sick and corrupt electoral process that must be fixed immediately.”

Hence the GOP’s electoral playbook: restricting ballot access; passing discriminatory voter ID laws; slashing early or absentee voting; conducting indiscriminate voter purges; limiting voter registration; and shutting polling places in minority precincts. Having lost the presidency, the House, and the Senate in 2020, the GOP has doubled down on rigging elections.

By mid-February GOP legislators in 43 states had introduced 253 bills to restrict voting rights. As elections expert Kenneth Mayer told the New York Times: “The typical response by a losing party in a functioning democracy is that they alter their platform to make it more appealing. Here the response is to try to keep people from voting. It’s dangerously anti-democratic.”

This effort includes the battleground states of Georgia, Arizona, Pennsylvania, Florida, Michigan, Wisconsin, and Texas. Arizona would purge voter rolls, restrict early voting, and require that absentee ballots be notarized and mailed the Thursday before election day. Florida would tighten the requirements to receive such ballots while banning dropboxes. Because Harris County held all-night voting to accommodate workers who could not otherwise vote, Texas proposes to ban the practice.

Georgia would restrict voting by mail and abolish dropboxes, no-excuse absentee voting, automatic voter registration, and the Sunday voting popular among African-American churchgoers. Because these strictures will inevitably create much longer lines on election day, thereby inflicting hours-long waits on voters, the GOP proposes to prevent volunteers from providing them with water, snacks, chairs and other assistance.

As in 2020, the GOP is treating minority voters like border crossers who must be barred from defiling white America. Observes political scientist Michael MacDonald: “We are witnessing the greatest roll back of voting rights in this country since the Jim Crow era.”

Where voter suppression won’t serve, Republican gerrymandering rigs congressional districts to ensure that votes for Democrats don’t matter. In 2010, the GOP redrew the map to win a far greater percentage of congressional districts than its share of the vote nationwide. And in its 2019 Rucho decision, the Supreme Court declined to restrict partisan gerrymandering, giving Republican state legislators and cartographers carte blanche to redeliver control of the House in 2022.

As the Rucho ruling suggests, the Court’s conservative majority has consistently facilitated the GOP’s attack on voting rights. Most pivotal was the Shelby County case in 2013, wherein a 5-4 Republican majority terminated the requirement of the Voting Rights Act that the DOJ “preclear” changes in voting laws by states with a history of voter suppression. Airily, Chief Justice Roberts declared that the “blight of racial discrimination in voting” had somehow evanesced.

That was proven preposterous by the subsequent passage of numerous Republican-authored state laws found to deliberately target minorities—of which Georgia’s attack on Sunday voting serves as a current example. Now a pending case involving changes in Arizona’s voting laws presents a fresh danger that the Court will further gut the Voting Rights Act.

At issue is its requirement that states cannot pass laws shown to discriminate against minority voters. The Court may well undermine this, perhaps by requiring that plaintiffs must prove that legislation with a discriminatory effect was also passed with a discriminatory intent—which, as ever, Republican legislators will deny.

The Democrats’ only chance to stop voter suppression and gerrymandering lies in two pieces of federal legislation: legislation to re-fortify the Voting Rights Act, and a sweeping election reform bill known as H.R. 1.

Democrats are expected to introduce the John Lewis Voting Rights Advancement Act within months. Critically, it would require the states with a recent history of voter discrimination—like Georgia—to seek preclearance from the Department of Justice or from a court before changing laws.

H.R. 1 passed the House last week. Among its many provisions, it establishes automatic voter registration for anyone interacting with designated government agencies; broadens access to mail-in voting for every eligible voter; and mandates that states accept ballots at dropboxes or polling places, and ballots postmarked by Election Day.

Further, it establishes same-day online registration and nationwide early voting. It requires a paper trail for every vote cast. Critically, it ends partisan gerrymandering by directing states to use independent commissions in drawing congressional maps.

Attempting to ennoble self-interest, Republicans argue that the Constitution grants state legislatures the exclusive authority to change their election procedures. But Article I explicitly empowers Congress to regulate the “times, places and manner” of federal elections.

In truth, H.R. 1 makes Republicans hysterical. Kevin McCarthy claims that “future voters could be dead or illegal immigrants or maybe even registered two to three times.” “This monster must be stopped,” Trump told CPAC.

With a fine lack of irony, Representative Andy Barr (R-Ky.) decried “the most divisive, unconstitutional, and destructive piece of legislation of my time in Congress” which “would effectively make it legal to cheat.” Similarly, McCarthy claims H.R. 1 would “put a thumb on the scale in every election in America so that Democrats can turn a temporary majority into permanent control.”

Eliminate gerrymandering? Heaven forfend. Warns Mike Pence, “congressional districts would be redrawn by unelected, unaccountable bureaucrats.”

Worse for the GOP, Democrats can bring H.R. 1 to the Senate floor at any time. But 41 senators can save the GOP from the horror of democracy. For Democrats, it comes down to this: end the filibuster—or else.

Take gerrymandering alone. As Eric Levitz notes, since the GOP will “dominate the redistricting process after the 2020 census . . . if Democrats don’t ban partisan redistricting in the next few months, their odds of retaining the House [in 2022] will fall swiftly toward zero.”

But the stakes for democracy are bigger yet. “This goes above partisan interests,” Fred Wertheimer admonishes. “The vote is at the heart of our democratic system of government.”

Abolishing the filibuster requires the votes of all fifty Democrats plus Vice President Harris. But moderate Democrats Joe Manchin and Kyrsten Sinema adamantly support its preservation. This frustrates the growing number of Democrats who view the filibuster as an anti-democratic anachronism which enables obstructionist Republicans to cudgel them substantively and politically—and who believe that H.R. 1 mandates its death knell or, failing that, modification.

Conventional commentary holds either result unlikely. This is premature. Among Democratic senators, there is a keen awareness that “Mitch McConnell told us no” doesn’t cut it anymore—especially on a matter so essential to democracy, the party, and its key constituencies. In consequence, there are serious ongoing conversations within the Democratic caucus about how to surmount the filibuster to pass H.R. 1.

The pressure mounts on Manchin and Sinema. Says Representative James Clyburn: “There’s no way under the sun that in 2021 . . .  we are going to allow the filibuster to be used to deny voting rights. . . . If Manchin and Sinema enjoy being in the majority, they had better figure out a way to get around the filibuster when it comes to voting and civil rights.”

One path is to carve out an exception for legislation concerning voting rights and the conduct of elections. There is ample precedent for this—including the budget reconciliation process. If there is adamant GOP opposition to moving H.R. 1, Senate moderate Amy Klobuchar says, Democrats will ask themselves: “Is there [a] filibuster reform that can be done generally or specifically?

Both Manchin and Sinema support H.R. 1 in substance, and Manchin has mused aloud about ways of making the filibuster more difficult to invoke. While Sinema has been notably silent, she is thoroughly aware of the GOP’s comprehensive voter-suppression effort in her home state of Arizona—potentially threatening her political survival.

This awareness will inevitably inform their response when colleagues ask, as they will, whether they truly want to facilitate Republicans in reclaiming Congress and the White House—all in the name of preserving an arbitrary rule which supposedly promotes bipartisan deliberation and cooperation but, in fact, suffocates legislative progress for partisan ends.

The most logical answer is no.

Which raises a reality that goes widely unmentioned. The indispensable prerequisite to garnering fifty votes to modify the filibuster is crafting a version of H.R. 1 which has the unanimous support of every Democratic senator—and which the GOP is determines to stonewall. Then, quite possibly, Manchin and Sinema will join their colleagues in changing the filibuster to ensure its passage—advantaging their party while rescuing democracy from Republican subversion.

Don’t yet bet against it.

Richard North Patterson

Richard North Patterson is a lawyer, political commentator and best-selling novelist. He is a former chairman of Common Cause and a member of the Council on Foreign Relations.