Senate Democrats are all finally on the same page on voting rights. The full text of the newly drafted Freedom to Vote Act dropped Tuesday, the first voting rights bill introduced this year featuring the support of the entire Democratic caucus.
That unity, unfortunately, will not inspire bipartisan comity from their Republican colleagues. Instead, the GOP will likely dig in their heels against what they know is a bill that will overturn their party’s state-level disenfranchisement efforts. A filibuster is inevitable.
What’s not written in stone is how the Democrats respond to this hurdle blocking what’s likely a once-in-a-generation chance to finally level the playing field for both parties and all of America’s voters. Because this is it — this is the ball game. There won't be time to start from scratch with a new bill. It’s not hyperbole to say the future of democracy itself depends on Congress passing voting rights legislation before the year is out. And doing so will require, at minimum, carving out an exception from the filibuster for voting rights protections.
This is it — this is the ball game. There won't be time to start from scratch with a new bill.
The Freedom to Vote Act is the result of weeks of efforts from senators to craft a pared down version of the For the People Act, or S1. Sen. Joe Manchin, D-W.Va., was the lone Democratic holdout on that bill, voting with all 50 Republican senators in June to prevent the Senate from beginning debate on the bill. Since then, Manchin has worked with a group including Sens. Raphael Warnock, D-Ga., and Amy Klobuchar, D-Minn., as well as Senate Majority Leader Chuck Schumer, D-N.Y., to hammer out a compromise.
What they produced doesn’t go as far as the For the People Act on reforming campaign ethics and finance, but it contains enough provisions to safeguard future elections against Republican tampering. It includes sections that would limit the ability of the GOP to box Democratic-voting minorities into convoluted districts through gerrymandering, overturn the Supreme Court’s recent ruling on how provisional ballots can be counted and roll back newly passed laws that make voting by mail harder.
If passed, the bill will also make Election Day a federal holiday, expand voter registration and boost the power of the courts to safeguard elections, as election law expert Marc Elias wrote on Tuesday:
But, the crown jewels of the Freedom to Vote Act are contained in the judicial review provisions. The bill not only creates a specific “right to vote” in federal elections but guarantees it. Under the new bill, states would be prohibited from enacting laws or policies that are “retrogressive” — i.e., that make voting harder. In addition, the bill would subject significant state restrictions on the right to vote to heightened judicial scrutiny. In another small but important improvement, the new bill allows for virtually all voting rights cases to be filed in the U.S. District Court for the District of Columbia, which has the promise of creating a national, uniform pro-democracy jurisprudence.
Schumer said Monday that he hopes to hold a vote on the bill as soon as next week. As things stand, though, the Freedom to Vote Act is set to meet the exact same fate as the For the People Act — frozen in place thanks to a GOP filibuster. Manchin has set about searching for the 10 Republicans needed to get to 60 votes, enough to break the filibuster, buoyed by the bipartisan infrastructure bill he helped get over the finish line in August. But he’s simply not going to find them, not this time.
This time around, much more is on the line than America’s bridges and highways. Passing this bill would totally scramble assumptions about what the next two years look like. Right now, the conventional wisdom is that the Democrats are almost certain to lose control of at least the House next year, thanks in no small part to Republican gerrymandering. In states that President Joe Biden barely won, such as Georgia, Republicans have been working overtime to limit access to the polls and make it harder for those same voters to turn out in the midterms.
But in reversing state laws passed in the name of preventing “voting fraud” and creating a truly level playing field across the country, Democrats may actually be able to retain power. And, more importantly, elections will be freer and more open than at any point since the Supreme Court gutted the Voting Rights Act in 2013. Politicians will have to work to convince their constituents to vote for them rather than relying on voter suppression.
That, in turn, could reset assumptions about what President Joe Biden will be able to pass through Congress before time runs out on his time in office. Biden gets that, which is why he’s finally ready to do what it takes to get this bill over the line, according to Rolling Stone:
During a late-July meeting in the Oval Office, House Speaker Nancy Pelosi pressed Biden to do more on voting rights; Democrats needed action from him, according to a person briefed on the meeting.
In that Oval Office meeting, the source says, Biden made a pledge: If Pelosi and Schumer tried every option they had to pass a voting-rights bill with Republican votes and got nowhere, Biden would get involved himself and lobby the handful of moderate Democrats to convince them to weaken the filibuster so that the For the People Act could pass without any Republican votes.
Since then, the tenor has shifted in the White House in the last month, multiple sources tell Rolling Stone. The White House has devoted more staff to the issue. More importantly, it has given assurances to outside supporters that Biden now plans to push for filibuster reform when necessary.
Senate Minority Leader Mitch McConnell, R-Ky., also understands the stakes. The longtime GOP master strategist gave his blessing to the infrastructure bill earlier this summer and allowed it to sail through without opposition. He knew that the benefits outweighed any that would come from blocking it, given that it could all be folded into the Democrats’ budget reconciliation bill. That’s not the case with federal election legislation, which once upon a time McConnell supported.
That means that there can be no hope for the GOP to see the light on this one, as Manchin has insisted — the only way out is through changing the rules of the game. Manchin and Sen. Kyrsten Sinema, D-Ariz., have been the two most vocal holdouts to preserving the filibuster. But Norman Eisen and Norman Ornstein argued in the Washington Post Tuesday that while eliminating the filibuster is probably off the table, changes to the filibuster are likely inevitable at this point.
Creating a carveout for voting rights then provides Democrats with the chance to send the John Lewis Voting Rights Advancement Act, which passed in the House in August, to Biden’s desk as well. Together, the two bills can be the bulwark against the GOP’s attempts to revitalize Jim Crow for a modern era and dilute the poison that Republicans have allowed to seep into our elections. But this is the last chance on the table for the Senate to act. If the Democrats abrogate their duty to the American people in the name of tradition and civility, it will be decades before the damage done to our system will be able to be undone.
