This bill is even better than I thought! It would for the first time create a statuatory right to vote for every citizen of legal voting age in federal elections (yeah that’s not a thing yet) and it prohibits retrogression; that is, laws that make it harder to vote; unless the government can prove the law is the least restrictive means of furthering an important government interest. The bill also creates clear legal standards to be used for judicial review of retrogression cases.
Subtitle E of the Freedom to Vote Act
Essentially a person challenging a law must be able to prove by a preponderance of the evidence that the law makes it more difficult to vote while the government must demonstrate by clear and convincing evidence that the restriction is neccessary to further a significant government interest. Clear and convincing evidence is a higher standard of proof than preponderance of the evidence but not as far as the beyond a reasonable doubt. If the government meets that standard the law can still be overturned if a plaintiff can prove by a preponderance of the evidence that there is a less restrictive way of furthering said government interest.
What this means in human speak is that states can no longer pass voting restrictions using vague allusions to voter fraud. They would actually have to prove voter fraud and that the law is least restrictive way of combating it. This basically takes concepts from the Voting Rights Act of 1965, which protects members of a minority group, and applies them to “all citizens of legal voting age.” It also creates very clear standards for judicial review, as opposed to the incredibly vague Anderson-Burdick Doctrine judges have historically used to decide election cases, or the incredibly restrictive “guideposts” Alito created in his Brnovich decision, and finally it.
It’s long past time the right to vote for all citizens was enshrined in US law and long past time we had clear, consistent standards from which to judge voting rights cases. The For the People Act did neither of those things. The Freedom to Vote Act does both!
When the Senate returns on Monday from their August break, they’ll have a lot on their plate: reconciliation, a bipartisan infrastructure bill, raising the debt ceiling; but perhaps nothing on their agenda is more important or more urgent than voting rights. Luckily there is still a path forward for Democrats if they choose to take it, and contrary to popular belief, it doesn’t necessarily involve eliminating or even necessarily reforming the filibuster (though doing so would undoubtedly make the path forward easier). In this piece I will explain the path forward on voting rights and why the window for action is closing fast.
First a word on Senators Joe Manchin and Kyrsten Sinema. Progressives have been needling them for months now to support ending the filibuster and neither of them has budged. Manchin has voice tepid support for some modest reforms, but Sinema has only dug in further. I can’t tell you how many times I’ve heard people say, “just convince Manchin,” as if he wasn’t the most stubborn person in the world and as if convincing someone to do something against their interests when you have absolutely no leverage on them wasn’t a complete waste of time; and there’s no time to waste. With the release of the census data last month the process has already begun to draw new Congressional maps. The further along states get in that process, the harder it will be to unravel extreme partisan gerrymanders. That’s why most experts believe that if a bill isn’t passed by the end of September, it will probably be too late. With the Senate not getting back until half the month is nearly gone that gives them an incredibly small window for action.
Still, all hope is not lost and there is a path for passing meaningful reforms in time to affect redistricting and the 2022 elections. Majority Leader Chuck Schumer teed up a vote on the For the People Act as well as on a standalone redistriting reform bill as the first order of business when the Senate returns on Monday. He also made clear that Democrats plan to replace the text of the For the People Act with a slimmed-down version that Democrats have been working on with Manchin. It’s imperative that by the time the Senate gets back they have the text of the Manchin compromise bill finished, otherwise Republicans will be able to hide behind the excuse that they’re voting against the more controversial (though still wildly popular) For the People Act instead of a slimmed-down package of modest reforms. This wouldn’t be ideologically inconsistent for Republicans, who last month voted against moving forward on the bipartisan infrastructure bill until the text was finished. In order to put maximum pressure on Republicans, we need to eliminate any excuse they can hide behind for blocking voting rights.
Nonetheless we should expect Republicans to filibuster. At that point Democrats should bring up the John Lewis Voting Rights Advancement Act, which the House passed last month. Once again Republicans will filibuster and it’s at that point that Democrats should take one more swing at trying to convince Manchin and Sinema, and any other members of their caucus who may be on the fence, to agree to make changes to the filibuster so that the bill can be passed.
It would be lovely if this were the end of the story, if Manchin and Sinema would have an epiphany and agree to eliminate the filibuster so that the bills can pass by a simple majority – but that is unlikely to happen. When Manchin and Sinema do refuse, it’s time for a good old fashioned talking filibuster. As I’ve pointed out in the past, bringing back the ‘talking filibuster’ doesn’t require any rule changes. It doesn’t require the consent of Manchin or Sinema or anybody else, it just requires some procedural maneuvers by Majority Leader Schumer. This will be painful (there’s a reason we don’t have talking filibusters anymore) but you know what they say: if you want to pass voting rights you’re going to have to sit through a few days of Ted Cruz reading banned Dr Seuss books. Desperate times man, desperate times.
There’s another reason Democrats need to do this as soon as they get back on Monday. That is because government funding runs out September 30th. This provides Democrats with leverage as there will be extra pressure on Republicans to end their filibuster so that the Senate can pass an appropriations bill and avoid going into a costly government shutdown. I have no doubt Republicans would shut down the government to block voting rights, but how long do we think they could keep it going? As workers are furloughed, SNAP benefits dry up, and people can’t get benefits for social security and medicare – eventually Republicans will fold.
We haven’t seen a talking filibuster in awhile so people may not be familiar with how it ends but it’s fairly simple. Once everyone who wants to talk is finished talking, and Senator can “ask for the yays and nays,” on the question and the measure can be advanced by majority vote.
So that’s it right? We’re done? Well, not exactly. Now we’ve got to do it all over again because the pending question that the Senate just voted on – and spent weeks debating – was whether to begin debate. Next the Senate must vote on the measure itself. This can also be filibustered but if we’ve just spent weeks enduring a talking filibuster, its highly unlikely that anyone will have the appetite for another one.
So that’s the path ahead. Is it easy? No. Is it painful? Yes. Is it the only way? It’s looking increasingly likely that’s the case. There is a clear path forward on voting rights. Democrats just need to choose to take it.
There’s no one more supportive of voting rights yours truly, but the rhetoric surrounding the fight is starting to get a little too heated and over the top. We’ve seen what can happen when you whip your supporters up into a frenzy and scare the bejeezes out of them with lies and propaganda. Let’s not do that again. So we all need to take a moment, pause, breathe, and try to think about this rationally. The election restrictions being passed in GOP state legislatures should be concerning – if for nothing else than for the sheer number of them – (so far 18 states have passed 3o laws that make it harder to vote according to the Brennan Center for Justice) but this isn’t Jim Crow 2.0, it’s not the end of democracy, and though we should be diligent about the prospect of election subversion, it’s not as imminent as some would have you believe.
The most concerning changes seem to be petty moves by GOP state legislatures to ‘punish’ people who wouldn’t do Trump’s bidding, and to give themselves more power over the administration of elections. In Georgia, for instance, Republicans stripped Secretary of State Brad Raffensperger of power by making him a non-voting member of the election board and made it so they can appoint the majority of the board’s members, which could lead the traditionally nonpartisan board to become overlty partisan. They also allow the election board to replace “underperforming” county elections superintendents. At first glance this seems like a blatant attempt to put a thumb on the scale, however there’s a 30 day period before hearings can even begin on a replacement, so it would be impossible to overturn an election after the fact; and there’s protections against the election board simply appointing a partisan footsoldier (the person must not have been a candidate or donated to a political campaign in the two years prior to appointment). Brad Raffensperger recently called for the Fulton County election superintendent to be fired, so we’re likely to get a real-time test of whether this provision could lead to election subversion or not. I would advise people to watch the proccess carefully and skeptically, but it’s not time to start freaking out about it just yet.
With all that being said, race can’t be ignored. While some of the effects these restrictions will have on voters of color have been overstated, many of them will still disproportionately affect black voters and it’s probably not a coincidence that in the last two elections (2018 and 2020) 92% of black voters supported a Democrat.
So why are Republicans doing this? I don’t know. Maybe they’re just playing to Trump’s base, maybe they believe it will help them win elections, or maybe they really do believe the lies about fraud in the last election. They’re obviously aware that many of these things will disproportionately affect black people, and that black people vote for Democrats more than nine times out of ten, but does that make them racist or does it just make them shameless partisans?
We should fight them. We should challenge them. We should ask them to explain why these measures are necessary, and what they have to say to the voters, especially voters of color, who will be dispropotionately affected by these laws, but we shouldn’t give in to fear mongering, race-baiting, and outright lying about what these laws do and what they don’t do.
But we need to go further than that. We need to pass the For the People Act and the John Lewis Voting Rights Advancement Act. Not to save democracy from it’s imminent demise but to make our democracy better, stronger, and more inclusive. We need to pass them based, not on fear but on the simple fact that they are good bills based on tried and true reforms passed at the state and local level by Republicans and Democrats alike that will make voting easier and more accessible, make our elections more secure, end partisan gerrymandering, get big money out of politics, and make sure our elected officials are held to the highest ethical standards.
We should also pass laws to prevent election subversion, not because it’s imminent, but because it’s good policy to safeguard our elections. Let’s start by reforming the Electoral Count Act, which seems to be our biggest achilles heel. Right now a simple majority of each house of Congress can reject any slate of electors for whatever reason they like. It makes no sense that it takes 60 votes to secure voting rights but a simple majority to overturn an election.
I do believe our democracy is in peril. But it’s not because Georgia makes you put the last four digits of your social security number on your absentee ballot or because Iowa went from 29 days of early voting to 20. Donald Trump is a threat to democracy. January 6th and the prospect of a future attack are threats to democracy. These laws are only a threat to democracy insofar as they feed into the false narrative that the last election was stolen or that democratically elected leaders are not legitimate. We have to be vigilant but we also have to be honest. We can’t defeat Trumpism by becoming like Trump, and we won’t defeat the “Big Lie” with a “Big Lie” of our own.
In the fight for voting rights the filibuster is being used, not as a way for Republicans to obstruct Democrats but as an excuse for Democrats not to pass legislation their voters want.
Majority Leader Chuch Schumer
The filibuster has become a self-fullfilling prophesy. In today’s Senate it’s become common practice for the Majority Leader to introduce a bill and then immediately file a cloture motion, which takes 60 votes to pass. When that cloture motion fails the bill is put to the side and the majority throws up their hands and says, “Well we tried!” But you didn’t try! You essentially filibustered your own legislation by immediately subjecting it to a 60 vote threshold. Can we really blame Republicans when all they did was not vote for the cloture motion you filed? The more I learn about the filibuster the more I conclude that it’s less a way for the minority to obstruct the majority than it is an excuse for the majority not to act on things their voters want. That’s the only possible reason I can think of why Senators in the majority continue to defend the filibuster, often citing the myth that this was how the Senate was originally designed.
Voting rights is a perfect example. The For the People Act (S1) was never meant to pass. It was written by Democrats as a messaging bill. Problem is, it turned out people really liked that message and now Democrats are backed into a corner. So what do they do? They bring the bill up for a vote that’s destined to fail and then throw up their hands. The problem is, we see through it. Senate procedure is complex so they assume they can get away with it because nobody understands how it works. What they didn’t count on is someone like me who has waaaaay too much time on his hands digging through Senate rules to actually understand how the filibuster works.
A quick primer:
The ‘talking filibuster’ is a thing of the past, not because there’s some rule saying it’s no longer required but because Majority Leaders have decided that it’s no longer worth it to force the minority to hold the floor and talk for hours on end. It’s not all the majority’s fault. Talking filibusters are hard to break. Even though the minority is forced to stand there and talk, most of the burden is still on the majority. They need to keep nearly their entire caucus on the floor in case of a quorum call, while the minority only needs one member to stand there and talk at a time. And one Senator does not need to keep talking the whole time. Senators from the minority can just tag team to keep the filibuster going indefinitely. That’s why we don’t see talking filibusters anymore. The majority has decided it’s simply not worth the time.
What happened with the For the People Act took things one step further. Democrats knew that Republicans would object to bringing it up for debate but did so anyway. Problem is, Republicans didn’t even have to object. Democrats did that for them by immediately filing a cloture motion. All Republicans had to do to block voting rights was not vote for cloture. They didn’t have to stand there and talk. They didn’t even have to vote against anything. They literally had to do nothing.
How do we fix it?
So how do we fix this? How do we hold both majorities and minorities accountable? One way is to get rid of the filibuster entirely by allowing the Senate, like the House, to end debate with a simple majority. That doesn’t seem likely to happen anytime soon but there are other ways we can actually strengthen the filibuster by returning it to the way it originally functioned. The simplest solution is to switch the burden for invoking cloture. Instead of needing 60 votes to end a filibuster, it should take 41 to maintain it. That way, the minority would always need to keep 41 members on or near the floor in case a cloture motion is filed. Another way is to get rid of ‘dual tracking’, which is esentially a cop out for the majority. It’s a way for them to put legislation that’s being filibustered off to the side and move onto other business. That’s what Democrats did with the For the People Act. If the majority didn’t have this option they would need to decide how important legislation is to them. Is it worth holding up the rest of their agenda? If so, they would keep the legislation on the floor and force the minority to filibuster it. If not they would pull it from the floor.
So how would this work in the real world? Well let’s say that Democrats bring the For the People Act back up for a vote in August or September, but this time with the filibuster reforms mentioned above. Republicans would object but now they would actually be forced to stand there and explain why they object. Republicans would need to keep at least 41 members on or near the floor while Democrats would only need 2 members. One to preside over the Senate and one to object to any motions made by Republicans. The rest of the Democrats’ caucus can do whatever they like. Maybe it would be a good time to hold fundraisers or campaign for reelection while their opponents are stuck in Washington? Watching Democrats fundraise while they’re stuck listening to Ted Cruz read a banned Dr. Seuss book might make Republicans think twice about whether filibustering the bill is really worth it. Maybe they’ll decide that it is, in which case they will continue filibustering, or maybe they’ll decide that it isn’t. Either way at least they’ll have to work for it.
Democrats will have to make that calculation as well. Maybe they’ve already passed their infrastructure bills so they’re fine with Republicans wasting time. Or maybe, since reconciliation takes time, they’ve secured one but not the other, or maybe neither has passed yet. Democrats would have to decide whether the fight for voting rights is worth it or whether to give in and pull the bill so they can move on to the rest of their agenda (remember the option to simply put the bill off to the side no longer exists in our scenerio). Democrats have a lot they’d like to get done, and only two years to do it.
As the end of September draws near both sides will be under increasing pressure to end the stalemate as government funding runs out September 30th and both would like to avoid a government shutdown heading into a midterm year. So what do they do? Maybe Republicans cave, maybe Democrats cave, or maybe, the filibuster actually does what it’s supposed to do and facilitates compromise. Democrats and Republicans could agree on a more limited bill, something similar to Manchin’s proposal. Either way at least something would happen, and more importantly, both sides would be held accountable. Republicans would actually have to explain why they oppose the voting bill and Democrats would have to actually try and pass the bill or admit that they never intended to pass voting rights in the first place.
President Biden plays a role too. His speech today in Philadelphia was important but it should only be the beginning. The President sets the agenda. He should ask Congress to prioritize voting rights and draft a bill as soon as possible around the Manchin compromises, while continuing to use the bully pulpit to gin up support. Basically everything he’s doing for infrastructure he needs to be doing for voting rights.
The bill will inevitably fail, but when it does there would be increased pressure on Manchin and Sinema and the rest of the Democratic holdouts to look at making changes to the filibuster. All of the changes I’ve mentioned above are changes Manchin himself has voiced support for.
As I explained in a previous piece, the deadline for redistricting reform is likely November 15th the latest, but the best chance we have of passing voting rights would be to bring it up by September and dare Republicans to filibuster it and shut down the government. I have no doubt they would do it. But how long do we think they could last?
It’s an incredibly condensed timeline but it’s the only chance we have to ensure the right to vote and have free and fair elections, not just for 2022 but for the next decade. Or we could rely on the court. But we saw July 1st how that ends up.
Yesterday, the Supreme Court decided in Brnovich v. the Democratic National Comittee to uphold two Arizona voting restrictions against claims that they violate Section 2 of the Voting Rights Act. The problem with the decision wasn’t that they upheld Arizona’s restrictions against casting a ballot in the wrong precinct, and so called “ballot harvesting,” the problem was that the Supreme Court used the case to severely weaken Section 2, just as many predicted they would.
I’m almost more upset with the DNC than I am the Supreme Court. The DNC should have never brought this case. Arizona’s laws were mild compared to some of the restrictions we’ve seen passed this year, and they should have known that the 6-3 conservative majority would use the case as an excuse to weaken Section 2.
Section 2 of the Voting Rights Act, for those who need a refresher, prohibits any practice that, “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” In his majority opinion justice Samuel Alito takes it upon himself to offer new “guideposts” for judging Section 2 cases. Alito says that, “courts must consider the opportunities provided by a state’s entire system of voting when assessing the burden imposed by a challenged provision,” and that the size of the burden is “highly relevant.” A “mere inconvenience,” Alito says, is not a violation of Section 2.
The most bizarre part of his opinion is the section where he says that courts should look at any law in comparison to what voting was like in 1982, the last time Section 2 was updated.
If I’m reading this correctly, he’s essentially saying that if it’s easier to vote than it was in 1982, when most states didn’t have early or absentee voting, then the restriction doesn’t violate Section 2. I’m no election law expert but this seems like flawed reasoning.
Though he places a high burden of proof on those challenging a voting restriction, he places almost no burden on the state to prove the restrictions are neccessary, simply saying that trying to prevent voter fraud is a “strong and entirely legitimate state interest.” This suggests that a state can simply say they’re preventing voter fraud without providing any evidence, and as long as the claim is even remotely plausible, that’s good enough.
As I’ve said before, not all voting restrictions are the same. Preventing voter fraud is an important and legitimate state interest and states should be able to take reasonable steps to ensure their elections are free from fraud and abuse. But when you make it harder to vote you should at least be able to show some evidence you’re preventing fraud. The Supreme Court disagrees.
Though this ruling mostly deals with disparate impact, or claims a restriction disproportionately effects voters of color, it also weakens discriminatory intent claims. Discriminatory intent is harder to prove becuase not only do you have to prove that a law disproportionately effects voters of color, you have to prove the state intended to discriminate. This is at the heart of the Justice Department’s case against Georgia’s new voting restrictions. The filing claims that Georgia Republicans intended to discriminate against black Georgians, knowing that 9 in 10 of them vote Democrat. People smarter than me have speculated that DOJ focused on discriminatory intent instead of disparate impact because they anticipated yesterday’s ruling, but the ruling also makes discriminatory intent cases harder to prove saying, “partisan motives are not the same as racial motives.” This seems to suggest that you can discriminate against a protected group so long as it benefits you politically.
It there’s any silver lining to this ruling it’s that it’s made it abundantly clear that we need to pass new legislation to protect voting rights. The John Lewis Voting Rights Advancement Act would update the formula for deciding which states are covered under Section 5 of the Voting Rights Act, based on whether they have a history of discrimination and voter suppression. States covered under Section 5 need to preclear changes to their voting laws with the Justice Department. Today, Congressmen Mondaire Jones (D-NY) and Ruben Gallego (D-AZ) introduced a bill to strengthen and restore Section 2 of the Voting Rights Act in response to the Brnovich decision. There’s also the For the People Act, which would set a floor for voter access, making voting easier and more accessible. It would also deal with vote dilution by ending partisan gerrymandering. It would also nullify many of the draconian measures we’re seeing passed in states today.
The Supreme Court has proven they will not protect voting rights, in fact, bringing cases before them only seems to make things work. This is a problem only Congress can solve. In reaction to the Brnovich decision, DOJ put out a statement saying, “the department urges Congress to enact additional legislation to provide more effective protection for every American’s right to vote.” President Biden simply said, “democracy is on the line.” Will Congress protect it?
The most important piece of the For the People Act (S1), in my humble opinion, is the part about redistricting reform. It’s also the most urgent, since it needs to get passed soon if it’s going to effect the 2021 redistricting cycle. But when exactly is soon? While S1 doesn’t lay out a specific date after which time it will no longer apply to 2021 redistricting, there are some deadlines laid out in S1 that should give us clues as to when this needs to be passed. They are as follows:
June 1, 2021, establish the non-partisan agency to appoint members of the independent redistricting committee
June 15, 2021, appoint the Select Committee to approve or disapprove the selection pool
July 15, 2021, submit the selection pool for the independent redistricting commissions
August 1, 2021, select committee approves or rejects the pool
August 5, 2021, first 6 members appointed to the independent redistricting committee
August 15, 2021, last 9 members appointed to the committee
November 15, 2021, commission approves a final redistricting plan
December 15, 2021, courts publish redistricting plan (if a triggering event occurs)
Triggering events, which would require a 3 judge court in the state’s capital or the District of Columbia to draw the maps, include failure to establish the non-partisan agency by the deadline, failure to appoint the select committee by the deadline, failure to approve the selection pool by the deadline, or failure of the committee to approve a redistricting plan by the deadline. Since we’ve already missed the first two deadlines those triggering events mean that, if S1 is passed, a 3 judge court will be drawing the maps for 2021.
The courts are supposed to develop and publish a redistricting plan no later than December 15th, so the deadline for passing redistricting reform depends on how long it would reasonably take a court to develop and publish a final map. The process, as laid out in S1, inlcudes a public evidentuary hearing, as well as a 14 day period where the plan and underlying data are made available for public comment.
So it looks like November 15th is likely the latest we can get redistricting reform passed in order for it to count towards the 2021 cycle, though even that would be cutting it close. Ultimately after digging through the over 800 pages of legislation for answers I find myself right back where I started: the sooner the better!
Contrary to popular belief bringing back the ‘talking filibuster’ wouldn’t require any rule change. We could have a talking filibuster tomorrow and it wouldn’t need the approval of Joe Manchin or Kyrsten Sinema or anyone else besides Majority Leader Chuck Schumer. Let me explain: The current ‘silent filibuster‘ exists because Senators can request what are called ‘holds’ on bringing up legislation. A ‘hold’ is basically letting the majority leader know that you plan to object when they bring a measure to the floor. This begins the process of a filibuster, which takes up considerable floor time, and if the majority leader doesn’t have the votes to invoke cloture and end debate, they usually consider it a waste of time to even introduce the bill. In this way, the mere threat of a filibuster is usually enough to keep the Senate from even considering a bill. That is why filibusters have gone from Senators talking for hours on end to a Senator, or more likely a staffer, simply sending an email.
The other reason we don’t see talking filibusters anymore is because of the “dual-tracking”system created in the 1970s. This basically allows the Majority Leader to put legislation that is being filibustered off onto a separate track and immediately move on to other business on a new track. That is what happened with the For the People Act yesterday and the January 6th Commission before that. In both instances a cloture vote failed and the Senate moved on to other business. This option is usually quite enticing to a Majority Leader, instead of enduring hours, sometimes days, of delay effecting not only that bill, but everything on the Senate calendar.
But there’s nothing stopping a Majority Leader from bringing up legislation that a Senator has requested a ‘hold’ on and there’s nothing forcing them to immediately file a cloture petition once a bill’s been introduced, as has become current practice. There’s also nothing forcing them to put legislation off to the side once the cloture motion has failed and move on to other business on a new track. Schumer could have instead introduced the For the People Act with a ‘motion to proceed,’ which is debateable, and allowed Republicans to stand there and talk it to death. Senate rules allow any Senator to speak for as long as they want on any matter before the Senate. Once everyone who wants to speak has spoken, the motion could be passed by majority vote and the Senate would begin debate.
Now if you’re saying to yourself, “Wait a minute they just spent hours, maybe days debating! That was just on whether to bring the bill up for debate?” Now you’re starting to get why the filibuster is such an effective tool for minorities to block legislation and why majority leaders usually choose to avoid filibusters at all costs.
Because filibusters are possible on any debateable motion, there are currently two choke-points when considering legislation: one on the ‘motion to proceed‘ and one on the measure itself. Since there are no rules on the length of speeches in the Senate, a filibuster can go on for as long as a Senator is willing to talk. Technically each Senator is only allowed to speak two times on any subject but that is rarely enforced, plus they can offer motions or amendments, both of which are debateable, which means each Senator would get to speak twice on every motion and amendment as well. Obviously you can see how a determined minority could essentially make a filibuster go on indefinitely.
Though the minority is required to have someone constantly holding the floor and talking, most of the burden is on the majority. The minority only needs one Senator on the floor at a time. The rest are free to go home and watch reruns of Three’s Company or do whatever until it’s their time to talk. By contrast, the majority needs to keep nearly their entire caucus on or near the floor in case of a quorum call. A Senator may at any time note the absence of a quorum (51 Senators). The clerk is asked to call the roll and if the majority can’t get at least 51 Senators to the floor by the end of the roll call, the Senate is suspended until a quorum can be established. This only further aids the minority in delaying whatever they’re filibustering. The only thing limiting this as a tactic for delay is the fact that a Senator loses the floor when they note the absence of a quorum.
The majority is not powerless though. Let’s say Schumer decides to bring the For the People Act up again for a vote in late August or early September. Republicans stage a filibuster which goes on for weeks. Government funding runs out at the end of September and Congress needs to pass an appropriations bill by the end of the month in order to avoid a government shutdown. There will be significant pressure on Republicans to end their filibuster so the Senate can vote on the appropriations bill and keep the government open. However Republicans could point out that all Schumer has to do is use “dual-tracking” and put the bill off to the side momentarily in order to pass the appropriations bill, and they wouldn’t be wrong. In this way “dual tracking” takes away one of the biggest incentives a minority may have to end a filibuster: public pressure.
So as you can see, there are no rules that needs to be changed to bring back the talking filibuster, but there’s a reason we don’t have them anymore. They waste a lot of time and place a significant burden on the majority. They are also extremely difficult to break. There are rule changes, however, that would make us more likely to see these ‘talking filibusters’ again by shifting the burden to make filibustering more painful for the minority, and easier for the majority to break.
The first rule change would be to make the “motion to proceed” nondebateable. This would take away one of the two choke-points so the minority would only have one opportunity to filibuster. This way, the minority wouldn’t be able to block a bill from even coming up for debate, as happened with the January 6th Commission and the For the People Act.
The final rule change that would make a ‘talking filibuster’ more likely is one that Manchin seemed to endorse for the fisrt time last week, that is, shifting the burden. Instead of it taking 60 Senators to end a filibuster, it should take 41 to maintain it. This would mean that the minority would need to keep at least 41 Senators on or near the floor at all times. If the minority’s numbers drop below 41 the majority could file a cloture petition and, unless there are 41 votes against it, cloture would be invoked to end debate and move forward on the bill. This has the added benefit of making it a little easier for the majority to endure a filibuster, since they would only need 10 or so Senators on or near the floor to maintain a quorum.
So as you can see, though a ‘talking filibuster’ could be brought back tomorrow without any rule change, there are changes, such as making the motion to proceed nondebateable, getting rid of “dual-tracking” and shifting the burden to invoke cloture, that would make ‘talking filibusters’ more likely and possibly grease the wheels to get the Senate moving again. These small changes would ensure that minorities still have a means to block egregious legislation without giving them a blanket veto over the majority’s agenda. It would also put this matter behind us so we wouldn’t have to read any more articles referencing “Mr. Smith Goes to Washington,” which I think we can all agree, would be a very good thing.
With Joe Manchin’s announcement Sunday that he would not be voting for S1: The For the People Act because it doesn’t have bipartisan support, voting rights advocates have been scrambling to try and find a way to salvage the bill, but as civil rights leaders and many of Manchin’s fellow Democrats have found out, unlike his houseboat (yes he lives on a boat) Joe Manchin can not be swayed. But people are going about this the wrong way. Manchin was very clear: he wants voting rights to be bipartisan. The way to Manchin’s heart is not through Manchin’s head; it’s through Republicans. If Democrats make a good-faith effort to craft a bill that at least ‘should’ have bipartisan support, one of two things will happen: either some Republicans will sign on, or they will all still oppose it and Manchin will come to the realization that in order to get anything important done we’re going to have to make changes the filibuster. Of course there’s always the third option that neither of those things happen and we just end up back where we started but I believe that a scaled back bill that could have bipartisan support has a better chance of success than the Democrats’ current plan, which is to use S1 to make their case about the filibuster. I find it highly unlikely that Manchin is going to change his mind about the filibuster to pass legislation he doesn’t even support.
With that in mind I have crafted a proposal that I think both Joe Manchin, and maybe even some Republicans (I’m looking at you Murkowski!) can support. Let’s call it S 1/2: The Skinny For the People Act (The For the Skinny People Act didn’t sound quite right). The bill would include:
Okay, so you may be wondering why I added a voter ID mandate and why my bill doesn’t include things like protection from voter purges. First the voter purges. If every state were to allow same-day voter registration, purges would no longer disenfranchise voters, they would be a mere inconvenience. Second, voter ID. Federal law already requires voters provide ID when they register to vote. That ID could be a driver’s license or the last four digits of your social security number. This means that every registered voter already has ID. Voter ID only becomes problematic when states have stricter ID requirements than the federal government. The solution? Have all 50 states require ID when voting but mandate that a state’s voter ID requirement can’t be any stricter than the federal government’s.
I can’t tell if this proposal will make everybody happy or nobody happy but all that really matters is if it makes Joe Manchin happy. The bill includes all the essentials to ensure equal access to the ballot and, if passed in conjunction with HR4: The John Lewis Voting Rights Advancement Act, which would once again require states with a history of racial discrimination and voter suppression preclear any changes to their voting laws with the Justice Department, it would provide robust protection from voter suppression and disenfranchisement. It would also address concerns Republicans have about election integrity and security. I’m not under any illusion that this is likely to get the support of 10 Republicans but since Joe Manchin’s definition of bipartisan seems to be that a bill has the support of one Republican, all we really need is one. And if not one, maybe he’ll settlef for 1/2.
With the census data released Monday, we’re getting our first glimpse of what the playing field will look like for 2022 and 2024. First, the winners and losers. As you can see from our friends over at 270towin, Texas is the only state that gained two seats. Florida, Colorado, North Carolina, Oregon, and Montana will gain one seat each, while California, Illinois, Michigan, Ohio, Pennsylvania, West Virginia and New York will lose one seat. New York was only 89 people shy of keeping their seat! The shift largely continues a pattern we’ve seen over the last few decades of power shifting from the rust belt to the sun belt, and from the northeast to the south and west. The only state to buck the trend was California, which lost a seat for the first time in it’s history.
Put another way, states that Trump won gained 3 seats and states that Biden won lost 3 seats. If the 2020 election were rerun Biden would have won 303-235, instead of 306-232. The 3 EV swap may not seem like much but if Arizona, Georgia, and Wisonsion, which Biden won by a combinded 42,918 votes, had gone to Trump instead, it would have resulted in a 272-266 victory for Trump. On the 2020 map that would have been a 269-269 tie, which would have been thrown to the House. The end result would have been the same, since Republicans control the most state delegations they would likely chosen have Trump, but the path would be different.
Another interesting scenerio, as pointed out by folks on Twitter, New York lost their seat to Minnesota by 89 people. If somehow Minnesota goes red in 2024, bringing Pennsylvania and Wisconsin along with it, and the Democratic candidate swaps winning North Carolina for Arizona, that would result in a 269-269 tie, meaning whoever wins the Presidency will have won it by 89 people!
But it’s not all good news for Republicans.The swing states that lost seats, Pennsylvania, Michigan, Ohio, all have been trending right over the years. Michigan has moved 14 points to the right since 2008, Pennsylvania nearly 10 points. Ohio meanwhile flipped from blue to red and moved 12 points to the right. Meanwhile all of the states that gained seats have been shifting left. McCain won Texas by 12 points in 2008, Trump won it by 5 in 2020. Arizona went from a 9 point win for McCain to Biden ekeing out a win by less than a percentage point, and Georgia went from a 5 point McCain victory to a Biden eke in 2020. North Carolina hasn’t moved much since 2008, a fact that has been quite frustrating for Democrats, but if you compare 2020 to 2000, it’s shifted left by nearly 12 points. The long and the short of it is, almost all of the states that gained seats are trending towards Democrats, while almost all the states that lost seats are trending towards Republicans. The only exception to the rule being Florida, which gained a seat and has been steadily shifting to the right.
On the House side things look much better for Republicans. They will have sole power to draw the lines for 187 districts, compared to 75 for Democrats. 167 districts will be drawn by independent commissions or divided government. Look for Republicans to press their advantage in Texas and Georgia, as well as Ohio and possibly Florida (though Florida has a constitutional amendment against partisan gerrymandering, GOP gains in state courts may make them less likely to jump in). Democrats will probably try to cut their losses by gerrymandering, Illinois, and New York. New York is interesting because though they have an independent commission draw maps, the commission can be overruled by the state legislature, in which Democrats hold supermajorities. In the end Republicans are still likely to come out on top, and with Democrats holding a slim 5 seat majority, redistricting could be a deciding factor in 2022.
The other big question mark is whether the voting rights bills that are making their way through Congress will be passed in time. The John Lewis Voting Rights Advancement Act would return the Section 5 preclearance formula to the 1965 Voting Rights Act, which courts struck down as outdated in 2013, meaning that states with a history of voting rights violations will need to preclear any changes to voting, including new maps, with the federal government. It’s hard to say who would be covered under the new formula but Arizona, Geogia, and Texas were each covered under the old one so they seem like the best bets. It’s worth pointing out though that the VRA would only deal with racial gerrymandering, partisan gerrymandering is still perfectly legal. Which is why the Supreme Court has failed to step in in the past.
That’s where the For the People Act comes in. The For the People Act would ban partisan gerrymandering, giving courts a legal mechanism with which to strike down unfair maps. It would also require that states set up independent redistricting commissions. Though this could theoretically be done in time for the 2021 redistricting cycle, many of the bill’s supporters privately concede that it’s already probably too late for this cycle, and because the census data is coming out so late, lawsuits challenging maps will have less time to make their way through the courts. All of this means that we’re likely to see some pretty gerrymandered maps for 2022, but could see a more level playing field by 2024, if the ban on partisan gerrymandering becomes law.
There are still a lot of question marks going forward but with the release of this first trove of census data the state of play for 2022 and 2024 is finally starting to come into view.
When Republicans were objecting to the election in the House and Senate, they often liked to cite people’s faith, or lack thereof, in the legitimacy of the election as their motivating factor. More recently it’s been used to justify new voting restrictions being put in place in states like Georgia and most recently Florida. While I disagree with their solutions, and frankly question their earnestness, I will give them one thing: there are a lot of people out there who still question the legitimacy of the election and that is a huge problem. We can’t simply dismiss that fact and allow it to fester. That is a very legitimate concern and one that needs to be addressed.
Okay, now that I’ve extended an olive branch it’s time for me to beat you over the head with it. The solution to a large swath of the American public not trusting the legitimacy of the election isn’t to make it harder to vote, it’s to stop lying to them. Tell them the truth. There was no widespread fraud in 2020. You know it, and I know it. That was just a lie created by a desperate man to soothe his battered ego. Does anyone really believe that if Trump runs again in 2024 and loses that he’s going to say, “Well Georgia and Florida required ID to vote absentee so it looks like I did lose!” Of course not. He will lie again and make something new up to complain about because that’s what he does. And that is why no election restriction is going to fix this problem, because no election restriction addresses the underlying cause: a serial liar with a lot of sway over a huge swath of the American public, has shown he’s more than willing to do anything to avoid the humiliation of having to admit defeat, even attack the legitimacy of the very democracy he hopes to lead.
And look, I know it’s not going to be easy. I know that any Republican who admits that the election was fair will be castigated as a RINO and excommunicated from the party. But that is your burden. You got us into this mess, you need to get us out. Trust me, I would love to help, but I know that nothing I say is going to convince anyone. As a proud Biden supporter, my word doesn’t carry much weight with these folks. It has to come from you. From someone they trust.
I’ll sacrifice things like automatic voter registration, vote by mail for all who choose, restoring voting rights to former felons, and prohibiting voter purges, if you all will start telling your voters the truth about the election. We both know that no change to our voting laws is going to matter if we don’t have the most fundamental thing for a democracy to function; the people’s trust in it’s legitimacy, and as long as the “big lie” is allowed to percolate unchallenged, we aren’t going to have that.
Most of this piece has been directed at Republican politicians, so let me take a second to speak to Republican voters, mainly, those of you who still believe the election was stolen. Don’t worry, I’m not here to try and convince you that it was fair. Let’s get that out of the way first. I’d like to offer some advice, if I may, and you can either take it or leave it. I’ve seen talk recently that in order to win you need to “beat Democrats at their own game,” i.e. cheat. Let me just say as clearly as I possibly can; do not do that. That is a terrible idea. You will get caught and you will find out the hard way just how difficult it is to commit voter fraud. Though on the bright side, after spending some time in prison, you might come around to restoring voting rights for former felons.
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