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Voting rights fight could move Democrats to reform the filibuster

Jon Ward
·Chief National Correspondent
·8-min read

A fight over a voting rights bill is turning up the pressure on Democrats to end the filibuster, a Senate procedure that in practice means most major legislation needs at least 60 votes to pass.

After the House passed the For the People Act on Wednesday evening, there were renewed calls for Democrats in the Senate to abolish the requirement that legislation clear a 60-vote hurdle before proceeding to final passage, which requires only 51 votes. Democrats control the Senate, even though there are 50 Democrats and 50 Republicans, because they also control the White House, and ties in the Senate are decided by the vice president.

The U.S. Capitol in Washington, D.C., U.S., on Friday, March 5, 2021. (Stefani Reynolds/Bloomberg via Getty Images)
The U.S. Capitol. (Stefani Reynolds/Bloomberg via Getty Images)

Whether to end the filibuster in an effort to force through legislation that Democrats say will expand and protect voting rights is “the most consequential decision they face in [the] next two years,” tweeted Ron Brownstein, a veteran observer of voting patterns and elections.

Ever since Democrats gained control of the Senate after they won both Georgia runoff elections on Jan. 5, voting rights experts and liberal pundits have been calling on them to get rid of the filibuster so they can push through the For the People Act — also known as H.R. 1 — to counteract the efforts of Republicans to make it more difficult to vote.

“We need bold changes to deal with the threat to democracy from an authoritarian wing of the Republican Party that appeared ready to abet Trump’s stealing of the election, as well as the separate problem that the Republican Party can continue to consistently win elections with minority support thanks to backward American election rules we have in place,” wrote Richard Hasen, a law and political science professor at the University of California, Irvine, and author of “Election Meltdown.”

Hasen said a number of reforms are needed to “deter the [Republican] party’s potential turn toward authoritarianism” following the Jan. 6 assault on the U.S. Capitol by militant supporters of then-President Donald Trump. But Hasen cautioned Democrats against pursuing H.R. 1, a sweeping effort to change voting laws across the country that is unlikely to garner any Republican support — which would be needed if the push to end the filibuster fails — and instead take a more targeted approach.

Hasen wants Democrats to focus on reinstating a key component of the Voting Rights Act that was removed by the Supreme Court in the 2013 Shelby v. Holder decision. Since that ruling, states — namely Southern states with a history of racial discrimination that now mostly lean Republican — have not needed to seek approval from the Justice Department before making changes to their election laws. And sure enough, states where Republicans control the Legislature have been introducing obstacles to voting at a rapid clip in recent years, and particularly since Trump began baselessly insisting that the November election had been stolen from him.

Voting rights is an especially fraught and polarizing topic in Congress, which is why Democrats would likely have to nuke the filibuster to get it through. Republicans and Democrats can haggle on issues like a minimum wage increase, with Democrats pushing for a bump to $15 an hour while moderate Republicans like Utah Sen. Mitt Romney argue for $10 an hour.

Protesters demand a federal $15-per-hour minimum wage near the White House in Washington, D.C., U.S., on Friday, Feb. 26, 2021. (Erin Scott/Bloomberg via Getty Images)
Protesters, seen near the White House in February, demand a $15 minimum wage. (Erin Scott/Bloomberg via Getty Images)

But even Romney, who twice voted to convict Trump at his impeachment trials and bucks the GOP’s party line with some regularity, is a brick wall on H.R. 1. “That’s not going to go anywhere, certainly not with me,” he said Thursday of the legislation.

The resistance comes despite the fact that election experts, including some prominent democracy analysts at the conservative Hoover Institution such as Larry Diamond, have said that the reforms in H.R. 1 are not a boon to one party or another, which tracks with what research has shown on the issue.

“None of these reforms should be dismissed as partisan,” read a letter from Diamond and more than 80 scholars and other prominent experts on American government, including Francis Fukuyama and sociologist Robert Putnam, as well as Harvard professor Steven Levitsky, co-author of “How Democracies Die.”

The group endorsed three major planks in H.R. 1. They said access to voting should be expanded by various means: automatic registration, same-day registration, early voting and no-excuse voting by mail. They also backed an end to gerrymandered congressional districts, which are drawn by state legislatures to give their party an advantage. And they said political spending should be fully transparent, ending the era of “dark money.”

Republicans, meanwhile, counter that because their voters are concerned about voter fraud and “election integrity,” they have to propose new hurdles to voting. But those concerns about voter fraud and election integrity have been propagated by Republican politicians for years, creating a kind of feedback loop in which GOP lawmakers say they must address the fears of their constituents, which resulted from the rhetoric of those same lawmakers.

For example, there’s a new bill proposed by Rep. Jim Banks, R-Ind., and Sen. Rick Scott, R-Fla., titled the Save Democracy Act. It would eliminate automatic voter registration, even though that is both a way to increase participation and one of the biggest steps that states can take to increase the accuracy of their voter rolls — a key step toward greater security.

Representative Jim Banks, a Republican from Indiana, speaks during a panel discussion at the Conservative Political Action Conference (CPAC) in Orlando, Florida, U.S., on Saturday, Feb. 27, 2021. (Elijah Nouvelage/Bloomberg via Getty Images)
Republican Rep. Jim Banks at the Conservative Political Action Conference in Orlando on Feb. 27. (Elijah Nouvelage/Bloomberg via Getty Images)

The Republican legislation also includes a number of provisions aimed at preventing voting by undocumented immigrants, another issue often talked about by GOP politicians despite a lack of evidence that it is a prevalent problem.

In an op-ed published before the election, Benjamin Ginsberg — who for more than 20 years was one of the GOP’s fiercest election attorneys and led attempts to root out cheating — said Republican anxiety about fraud is effectively baseless.

“The truth is that after decades of looking for illegal voting, there’s no proof of widespread fraud. At most, there are isolated incidents — by both Democrats and Republicans. Elections are not rigged,” he wrote.

Yet over the past 20 years, Republican lawmakers have limited early voting, purged voters from the rolls simply for not voting and moved to stop laws in states that would allow ex-cons to cast ballots. They’ve also tried to require voters to show the kinds of IDs at the polls that are more reliably used by Republicans — such as gun permits — while making it harder for voters to use IDs more frequently used by Democrats, like the ones given to college students.

And so the pressure on Democrats to eliminate the filibuster to make way for election reform is going to only increase after the upcoming COVID-19 relief bill is passed and signed into law. Minnesota Sen. Amy Klobuchar — a relatively moderate Democrat — said this week she supports ending the filibuster. President Biden, who spent 36 years in the Senate, has not indicated one way or another whether he would support such a move, although he has in the past expressed support for keeping the filibuster.

Norm Ornstein, resident scholar at the American Enterprise Institute speaks during the Democratic Policy and Communications Committee hearing in the Capitol building on July 19, 2017 in Washington, DC. (Joe Raedle/Getty Images)
Scholar Norman Ornstein at a Democratic Policy and Communications Committee hearing at the Capitol in 2017. (Joe Raedle/Getty Images)

But Norman Ornstein, a resident scholar at the American Enterprise Institute, cautioned progressives against demonizing Democrats like Sen. Joe Manchin of West Virginia or Sen. Kyrsten Sinema of Arizona, who oppose ending the filibuster. Manchin in particular, Ornstein noted, represents a conservative state and, if Democrats are too hard on him over this issue, could be enticed to switch parties, which would give Republicans control of the Senate. Ornstein pointed to the story of former Sen. Jim Jeffords of Vermont, who left the GOP in 2001 in a similar circumstance.

Ornstein recommended reforms to the filibuster, such as returning to the requirement that senators must actually be physically present in the Senate to mount a filibuster. That requirement was lifted in the 1970s, after the practice was reformed.

Reinstating the “present and voting” standard, as Ornstein dubbed it, would also require a majority of the minority party’s senators to be physically on the floor or nearby, and would force a lengthy debate on the legislation they wanted to block. It would also respect the rights of the smaller party in the chamber, which is the main concern of senators like Manchin, Sinema and others.

“If, for example, the issue in question were voting rights, a Senate deliberating on the floor, 24 hours a day for several days, would put a sharp spotlight on the issue, forcing Republicans to publicly justify opposition to legislation aimed at protecting the voting rights of minorities,” Ornstein wrote.

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