UPDATE (Jan. 19. 2022, 9:00 p.m. ET): After hours of debate on the Senate floor, Democratic leaders failed to break the GOP's voting rights blockade and advance the two voting rights bills via cloture vote.
Senate Democrats are once again set to see their hopes of passing new voting rights legislation dashed upon the cruel, unyielding filibuster and Republican obstructionism. The party’s leadership assures America that this will be a noble failure and that Democrats’ attempt to protect our democracy is worth the abject humiliation of yet another loss on a key issue.
It’s a disappointment we’ve seen all too often in the last year. This performance has been particularly galling when you consider that the legislation in question is not the federal takeover of elections that the GOP insists it is. It’s not even the most far-reaching set of reforms among the many that American elections need. Instead, it sets a floor, i.e., the absolute bare minimum that states can deliver in terms of voting rights protections in federal elections. And that, apparently, is too much to ask of the senators who will doom the legislation to defeat.
The party’s leadership assures America that this will be a noble failure.
The bill the House sent to the Senate last week is the fusion of the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act, forming the Freedom to Vote: John R. Lewis Act. This hybrid bill would both overhaul the way federal elections are run and restore key parts of the 1965 Voting Rights Act that have been eroded by the courts over the last decade.
This bill’s passage would mean no more partisan gerrymandering of congressional districts. It would mean online and Election Day voter registration nationally. It would mean that many of the methods of voting advocated for in the pandemic, including drop boxes for ballots and expanded absentee voting, would be made standard. And it would re-empower the Department of Justice to have states clear new election laws before they go into effect, ensuring that they don’t discriminate based on race or any other protected category.
Almost as important is what the bill would not do. It would not make participation in elections compulsory, as it is in Australia. It would not require automatic voter registration for federal elections upon turning 18, leaving it up to individuals to go through the process themselves. It would not offer voting to noncitizens at any level, as recent legislation in New York City has provided for residents in municipal elections. And it would not set up a nationwide universal vote-by-mail system akin to the ones states like Colorado and Washington have successfully managed for years.
It also would leave the states free to exceed the mandated minimums. Much like the federal minimum wage, state and local governments would be able to go above and beyond what’s required. Colorado and Washington would be allowed to keep mailing their citizens ballots; if a state wants to offer three weeks of in-person early voting instead of the 15 days the bill would require, that would be entirely fine.
Senate Minority Leader Mitch McConnell, R-Ky., has made a habit of defending Georgia’s new election law by drawing a comparison to President Joe Biden’s home state of Delaware. How can Georgia’s GOP-led Legislature be restricting voting rights but still provide more days for in-person early voting than Democrats in Wilmington, he asks. (Answer: When Georgia’s new rules are a rollback of previous ease.) The solution, though, isn’t to match the most restrictive laws nationwide when it comes to absentee balloting and voting by mail; it’s to provide a floor that Georgia and Delaware both have to meet.
Thanks to a bit of procedural trickery, the bill skipped the first possible GOP filibuster. Senate Majority Leader Chuck Schumer, D-N.Y., on Tuesday filed cloture — the process to cut off debate and move to a vote — and blocked the chances of Republican amendments diluting the package on the Senate floor. But all signs point to the bill failing to get the 60 votes needed for cloture to pass.
Wednesday’s likely vote will not succeed for two reasons.
First, there are not 10 Republicans in the Senate who see any merit in letting the bill move forward. Sen. Joe Manchin, D-W.Va., helped craft the Freedom to Vote Act with the goal of winning over the votes needed to break a filibuster. That clearly did not happen. Almost the entire GOP caucus has opted instead to protect the advantages that GOP state legislatures have spent the last year crafting across the country. Those changes, many of which the Democrats' bill would reverse or restrain, were based in large part on former President Donald Trump's lies about voter fraud in the 2020 election.
Second, Manchin and Sen. Kyrsten Sinema, D-Ariz., have refused to change the filibuster rule to allow this bill — which they both say they support — to pass the Senate. When Schumer inevitably calls for a vote to allow a carveout for voting rights legislation, they will opt to vote with the Republicans. In opting to protect the filibuster over this bill, voter disenfranchisement will become a bipartisan effort, a fun-house-mirror mockery of the coalition built to pass the original Voting Rights Act.
Cloture failing won’t automatically spell the end of this bill. Schumer could still keep it on the floor, forcing the Senate to keep debating it until a majority can be found to table it or a miracle causes the holdouts to change their minds. Until then, Schumer can keep holding cloture votes until Senate business demands other items take precedence.
Even then, Schumer and Biden have promised to keep hammering away at this issue until the fall. But so far, the efforts over the last year have yielded very little in terms of tangible results. If the choice is between Democrats shrugging and moving on and running headfirst into walls to try to force the issue, I’m almost always going to prefer the latter. But at some time in that whole process, constituents would prefer to see results. But all Democrats are set to be left with is a headache and a sore neck.
