Much as we all want to see congressional action on voting rights while Democrats control the White House and Congress, it’s time to consider a Plan B, as I noted at New York:
In all the projections of what Congress might accomplish this year, there’s no subject on which Republican obstruction is more powerful and fateful than voting rights. And amid widespread angst over state-level voter-suppression measures enacted at the behest of both threatened Establishment Republicans and delusional MAGA folk alleging massive if never-documented fraud, partisan gridlock may actually be hardening.
The two pieces of voting-rights legislation currently moving through Congress are certainly long overdue. The For the People Act (HR1 and S1), which has passed the House twice, would establish national standards for voting, elections, and representation across a wide range of issues, from rules for absentee ballots to gerrymandering to the financing of congressional campaigns. On a parallel track, the narrower John Lewis Voting Rights Advancement Act aims to reverse the Supreme Court’s demolition of the pre-clearance provisions that prior to 2013 would have subjected voting and election-laws changes (like the ones Republican-controlled states are racing to enact) to advanced review and possible cancellation by the U.S. Department of Justice.
The For the People Act is pending in the Senate, where it has 49 co-sponsors (every Democrat other than Joe Manchin). The John Lewis bill is still under development in both Houses, as Democratic lawmakers work on a formula for pre-clearance to replace the one the Supreme Court struck down as “outdated.” But all 50 Senate Democrats, plus Republican Lisa Murkowski, favor it (perhaps with modifications; Manchin wants to require pre-clearance in all 50 states).
Unfortunately, it will take every Democrat plus ten Republicans to get either bill through the Senate, and that seems 100 percent impossible for S.1 and maybe 95 percent impossible for the John Lewis Act. Many Republicans plausibly argue that S. 1 goes far beyond voting rights into areas like campaign-finance law that are wildly controversial. There’s no legitimate reason for GOP hostility to the most basic version of the John Lewis Act, which restores the VRA to what it was when it was unanimously extended by the Senate (with support from President George W. Bush) in 2006. But at a time when Donald Trump and his allies are lashing Republican legislators everywhere to restrict voting opportunities, few Senate Republicans are going to risk a primary challenge for valuing voting rights over “election integrity.”
Ron Brownstein has forcefully argued that defeating attacks on the franchise is a life-or-death matter for Democrats, meriting the extraordinary remedy of taking the filibuster off the table for voting-rights legislation (if not for everything):
“With the congressional calendar dominated by President Joe Biden’s multitrillion-dollar spending proposals … activists are expressing concern that neither the administration nor Democratic congressional leaders are raising sufficient alarms about the threats to voting rights proliferating in red states, or developing a strategy to pass the national election standards that these groups consider the party’s best chance to counter those threats.”
In a closely divided country where Democrats are clinging to power in Washington, new voter-suppression laws (in tandem with present and future GOP control of state-election systems) could help Republicans gain a decisive advantage in the next couple of election cycles. But Joe Manchin’s outspoken opposition to any sort of filibuster reform — explicitly including a carve-out for voting rights — makes the urgency of this fight a little beside the point. No threats or blandishments aimed at Manchin can likely overcome the simple fact that he represents a state that gave Donald Trump 69 percent of its vote in both 2016 and 2020. And opposing filibuster reform is an easy and mandatory vote for Republican senators, even those who are open to heresy on other subjects.
So what are voting-rights advocates, including the president and most other Democrats in Congress, to do? Sure, they can scale back S. 1 to make it less obviously objectionable to Republicans, but at the risk of alienating Democratic constituencies, and without necessarily winning a single GOP Senate vote. Or they could (and probably should) launch a very noisy effort to shame Republicans for blocking the John Lewis bill — but even alleged GOP voting-rights supporters can always find some whataboutism excuse (ballot harvesting! Unsupervised drop-boxes!) for demanding a different kind of legislation.
In The Atlantic, David Frum looks down the likely road to defeat for voting-rights legislation in this Congress and finds a “Plan B” that is unsatisfying but perhaps all that’s left:
“Taking decisive action to fill the 80-odd federal judicial vacancies with pro-voting judges followed by turbocharging enforcement efforts at the Department of Justice may seem only second-best compared with new legislation. But if new legislation cannot be enacted, then second-best will have to do.”
Frum is alluding to the power of the Civil Rights Division of the Justice Department to launch its own litigation against voter-suppression measures under Section 2 of the Voting Rights Act, which is still intact. Under the leadership of the distinguished and newly confirmed Civil Rights Division chief Kristen Clarke, such litigation could indeed be “supercharged.” But while the Biden administration can strengthen pro-voting-rights elements of the federal judiciary to give its Justice Department some wins, Clarke and other voting-rights advocates will still being dealing with conservative-leaning courts, led by a Supreme Court that is more conservative than it was when it weakened the VRA eight years ago.
Indeed, the author of that Shelby County v. Holder decision, Chief Justice John Roberts, is now in many respects to the left of the Court’s center of gravity. And the Supreme Court will soon rule on a fresh challenge to Section 2 of the VRA that could make it harder for Clarke or any other litigant to successfully show the discriminatory effect of voting- or election-law changes.
If all else fails, of course, and state-level Republicans continue to violate voting rights, Democrats could use outrage over these developments to energize their own voters and simply overwhelm the barricades erected by legislators. Brownstein thinks that may be Team Biden’s Plan B already:
“Looking ahead to 2022 and 2024, ‘I think our feeling is, show us what the rules are and we will figure out a way to educate our voters and make sure they understand how they can vote and we will get them out to vote,’ the official told me. Through on-the-ground organizing, ‘there are work-arounds to some of these provisions,’ said a senior Democrat familiar with White House thinking, who also spoke with me on the condition of anonymity to discuss internal deliberations.”
It is entirely true that no one knows what the impact of voter-suppression laws will be on the ground, particularly with respect to provisions that make voting much more inconvenient without blocking it altogether. Some analysts are convinced that Republican legislators don’t know what they are doing, or are simply reacting to Trump’s demands for assaults on voting by mail (a voting method that Republicans utilized in the past at least as much as Democrats). But Democrats hoping to out-motivate Republicans in the 2022 elections are betting against the decided evidence of history, in which the White House party almost always loses ground in midterms. And it won’t take much in the way of losses for Republicans to regain control of the House if not the Senate, and shut down prospects for voting-rights legislation for the foreseeable future.
