The Freedom to Vote Act comes up for a vote this Wednesday. A vote that is likely to fail to a Republican filibuster, after which, Democrats will have to choose whether to reform the filibuster in order to pass this legislation, or whether to let an undemocratic rule stand in the way of protecting democracy. To me it’s an easy choice. This legislation is more important than a Senate rule, especially one that has itself done much harm to our democracy. In fact, I would argue that the Freedom to Vote Act is the single most important piece of legislation in my lifetime. It shouldn’t be a priority of the Democratic majority it should be THE priority.
The Freedom to Vote Act makes voting easier and more accessible by requiring 15 days of early voting, including two weekends, vote-by-mail for all who want it, and minimum standards for ballot drop boxes, including requiring jurisdictions have at least one or 25% (whichever’s bigger) available 24/7. It would make election day a public holiday and restore voting rights to the formerly incarcerated after they’ve paid their debt to society.
Not only does the bill make it easier to vote, it also makes it easier to register to vote, requiring states allow automatic, same-day, and online voter registration. It strengthens voter list maintenance requiring states use “objective and reliable evidence” of a voter’s ineligibility before removing them from the rolls, not things like failure to vote or failure to return mail.
For those concerned about election integrity, there’s plenty in the bill for you too! The bill creates a national standard for states that require voter ID. It requires states use paper ballots that can be verified by voters so every vote has a paper trail. It also requires states perform reliable post-election audits and it provides grants for states to upgrade outdated election equipment and make improvements to cybersecurity.
The bill also goes further than the For the People Act by creating a judicial protection of the right to vote, and prohibiting governments from placing undue burdens on someone’s ablity to vote unless it furthers a significant government interest and is the least restrictive way of furthering that interest. This means that states could no longer place restrictions on voting based on hypothetical voter fraud, they would actually have to prove that fraud exists and that their restriction is the least restrictive way of combatting it.
The piece of the bill I’m most excited about is the fact that it would finally end partisan gerrymandering once and for all by making it illegal to draw a map with the intent or effect of unduly favoring or disfavoring a political party. It also creates clear judicial standards by which to prove something is an illegal partisan gerrymander and an expedited judicial process so maps can be struck down within weeks of enactment, not years.
Finally the bill prevents election subversion by insulating nonpartisan election administrators from partisan influence and protecting election workers from threats and intimidation.
There’s much more to the bill, including provisions that reduce he influence of big money and protect from foreign interference, but if you’re still reading I should count myself lucky and end here: Protecting democracy mean ensuring everyone can participate in that democracy. It means making sure voters choose their representatives, not the other way around. And it means when weaknesses are discovered, putting in meaningful guardrails to shore up our democracy and protect from those who wish to subvert it. There’s much more we need to do to protect our democracy, incuding passing the John Lewis Voting Rights Advancement Act and updating the Electoral Count Act, but this bill is a huge step in the right direction.
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?
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.
More broadly, voter fraud is extremely rare. Study after study, court after court, partisan commission after partisan commission (and when I say partisan I mean Republican) have failed to turn up any evidence of widespread fraud. Proponents of voter fraud like to point to the Heritage Foundation’s database which, as of this writing, has 1,322 proven instances of voter fraud. But that goes back to 1982, a period during which over 3 billion votes have been cast in federal elections alone. That’s a rate so low, my calculator doesn’t have enough space for all the zeroes.
For this story though, I want to focus on another claim I often hear, which is, that voter fraud is going on undetected. To a certain extent this claim is unfalsibiable, meaning it cannot be proven true or false. Unfalsibiable claims are especially dangerous, since they’re able to just hang there in the ether. But if massive voter fraud were going on undetected, there would be certain clues, anomalies in the data, that would be a pretty clear give away.
Of course, I am not the only person to contemplate this question. In fact, people way smarter than me have contemplated it. Researchers at Harvard and Stanfod did a study last year using statistical analysis to try and estimate the amount of double voting in the 2012 election, looking at the national voter file. What they found was a rate of one double vote for every 4,000 voters. But when factoring in a poll book error of 1% (the error in Philadelphia), the rate drops down to 1 in 13,000 voters. A poll book error of 1.3% would explain all of the discrepancies.
So as you can see (and I hope this is the last time I have to say this, but I have a feeling it’s not) the election was not stolen, voter fraud is rare, and it unlikely that it’s happening on a massive scale undetected. Put another way: Arizona auditors are using UV lights to search for signs that ballots were flown in from China, they’d be better off shining those UV lights inside their bodies to cure themselves of coronavirus.
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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