Julia Shephard
// Democrats should learn from their inability to pass key legislation //
“Voting Rights Bill Dead” read a January 15th New York Times report after Senator Kyrsten Sinema (D-AZ) declared her opposition to her party’s voting rights package. Although the legislation, which combined the John Lewis Voting Rights Act and the Freedom to Vote Act, did not officially fail to pass until four days later, the setback signified the collapse of a core element of the Democratic agenda. While the loss will mean the continuation of an anti-democratic backslide around the country, Democrats should use it as a lesson about political practicality and turn to drafting bipartisan voting rights legislation, focusing predominantly on election certification.
Although the majority of items within the bill were necessary for the retention and strengthening of our democracy, not all of the bill’s elements substantially benefited American voters. During a spoken debate on the bill, something rare in the age of the silent filibuster, Republican senators like Wyoming’s John Barrasso argued “what we are about to vote on tonight has nothing to do with the priorities of the American people.” On its surface, the argument appears weak — lawmakers have a mandate to address any issues pertaining to their constituents, especially democracy — but supporting unpopular, sweeping reforms hurt Democrats politically regardless. Some elements of the bill, including expanding access to the ballot for voters with disabilities, seem relatively common sense to liberals; others, like loosening voter ID laws to expand access to the ballot, lack support from 80% of voters and 62% of Democrats, who see the burdens of such measures as relatively limited. Simply dubbing the reform “the voting rights bill” obscures its nuances – some elements had more merit than others.
The John Lewis Voting Rights Act, named for the deceased Georgia congressman and civil rights activist, would have restored much-needed checks on regressive voting laws. In 2013, the Supreme Court effectively gutted the Voting Rights Act in Shelby County v. Holder, by ending voting law preclearance, meaning that states that had significantly discriminated against voters in minority groups in the past would no longer need to have their voting laws approved by the federal government. The ruling meant that Southern states with a record of Jim Crow voting laws gained new abilities to restrict voting. In the aftermath of Shelby County, over 1,500 polling places closed in such regions, limiting the access of predominantly Black voters to the polls. By requiring that all states receive approval from the Department of Justice for certain law alterations in federal elections, the John Lewis Act would have stopped the progression of excessive poll closures. Critics of the legislation, who argued that the bill would result in heavy burdens for the states, failed to recognize that over 99% of new voting laws were approved in an era of preclearance by the DoJ, implying that most new laws would still pass muster. Instead, the resolution would have stopped a rise in legislation under the guise of “election integrity.”
However, the JLVRA’s companion bill, the Freedom to Vote Act, consisted of multiple pieces ranging in extremity and should have been split up into individual bills separate from the first piece of legislation. Among its many proposed changes, the legislation would have made Election Day a national holiday, outlawed partisan gerrymandering, and created a mandate for donors to disclose any campaign contributions over $10,000. Many of the maneuvers likely do more good than harm. Partisan gerrymandering, for example, has boxed voters of both parties into oddly shaped districts where their will to alter democracy has little impact. At the same time, making Election Day a national holiday would not necessarily increase voter turnout; removing children from schools and workers from paying jobs for one day might have much less of an impact than keeping polls open for longer and ensuring that early voting is accessible. If the Senate regularly debated individual bills – which, to be fair, it does rarely – the institution would have created more popular legislation.
Specific objections to individual elements of the combined bill (which various politicians and voters might rationally have) matter less than the fact that Democrats currently lack a large majority in the Senate and need to use their finite political power for maximum impact. Legislation only supported by Democratic senators does nothing to boost confidence in elections among the 50% of Republicans who believe the 2020 election was stolen, which portends similar issues in 2024. Of course, this problem was formed by Republicans, but taking steps to end nonexistent voter fraud helps Democrats optically among moderates while slowing the increase in voter suppression. A bipartisan bill reinstating preclearance and extending polling hours on Election Day that maintained voter ID requirements and limits on vote-by-mail could garner more popularity while still keeping access to the ballot as wide as possible.
Keeping in mind the limits of their mandate, Democratic senators should focus on the most vulnerable part of the election process: ballot certification. In 2020, Republican state legislatures attempted to delay certification for long enough to appoint their own electors, a legally bizarre move to place Donald Trump back in power. Laws passed in states such as Georgia allow state legislatures to suspend election county officials, allowing a partisan body far too much interference in the election certification process. Others invite more legal challenges by third parties to the electoral process. Such laws fundamentally undermine our democracy and ease the overturning of elections, but the voting rights bills would not have altered them. While the Senate’s move to hold a speaking debate on the proposed reforms may go down in history, ultimately, the party set itself up for a defeat on an issue too grave to lose on.
Their bill has failed, but Democrats still have opportunities to make progress on voting rights in a substantial, not symbolic way. A bipartisan group of senators, including Joe Manchin and Susan Collins, have expressed support for reforming the Electoral Count Act of 1867, which would secure the authority of counted electoral votes and make throwing them out more difficult. The bill being drafted would allow Democrats to demonstrate that they can work with their opponents and take steps towards election security that the Freedom to Vote Act did not address. With recognition of what they have the power to do and an analysis of the most impactful measures for voters, the party can still take steps to defend our democracy.
