Since returning from their winter break, congressional Democrats and President Joe Biden have made a renewed push to pass election legislation. But despite Democrats’ claims that states are engaged in an all-out assault on voting rights, Democrats continue to lack substantial GOP support for any elections bill, and this situation is unlikely to change before November’s midterms.
The first indications that this would be Democrats’ newest push came on Jan. 3 on Twitter from Senate Majority Leader Chuck Schumer (D-N.Y.).
In that tweet, Schumer wrote that “what happened on [Jan. 6, 2021] is directly linked to the one-sided, partisan actions being taken by GOP-led state legislatures across the country.”
Specifically, Schumer is referencing the moves by state legislatures to strengthen their own voting laws in the wake of the 2020 election. After that election, which was rife with statistical anomalies, many were left concerned about the integrity of U.S. elections.
To address these concerns, state legislatures across the nation have passed new election legislation that strengthens voter ID and absentee balloting requirements in addition to other reforms.
Since well before the 2020 election, Democrats have said that these sorts of requirements disproportionately affect minorities. However, the Supreme Court has tackled this question recently and concluded that Democrats’ claims were untrue.
In the case of Brnovich v. Democratic National Committee (DNC), the DNC argued that a new Arizona law that changed voter ID and absentee voting guidelines was meant to suppress the minority vote and was thus illegal under the Voting Rights Act (VRA). Arizona Secretary of State Mark Brnovich, who has been eyed as a potential challenger to Sen. Mark Kelly (D-Ariz.) later this year, argued that the DNC’s assessment was wrong.
Ultimately, the court sided with Brnovich, ruling that statutes similar to those in the Arizona law were perfectly permissible under the VRA.
Still, Democrats have continued to maintain the position that the Supreme Court is wrong and that the efforts by states to strengthen their voting laws constitute what many Democrats say is a “new Jim Crow.”
Schumer’s statement on Twitter on Jan. 3 made it clear that Democrats would be focusing on the issue once they returned from their break. “We can and must take strong action to stop this anti-democratic march,” he wrote.
Thus far, Democrats have two courses to meet this end.
Revision of the Electoral Count Act Proposed as Most Likely Solution to Win GOP Support
The first involves a revamping of the Electoral Count Act of 1887 (ECA).
This law—passed ten years after the end of the northern occupation of the south—was intended to address electoral problems raised during the 1876 presidential election.
During that election, several states sent competing slates of electors to Congress, leaving Congress scratching its head over which votes they should count. This constituted a veritable election crisis, and concerns were heavy that a solution would not be reached by Inauguration Day.
Ultimately, Democrat Samuel Tilden agreed to allow Republican Rutherford B. Hayes to take the victory, but only on the condition that Hayes would immediately remove military occupation forces from the south. Hayes agreed, but the issues raised during that election still showed Congress that action was necessary to prevent a similar electoral crisis in the future.
In brief, the ECA left it up to states to work out such conflicts in the future. The ECA laid out the conditions under which Congress would arbitrate disputes, but this was mostly limited to situations where a governor had confirmed two competing slates of electors. Congress was also given the right to reject electoral votes over ministerial error, i.e. a typo, ineligibility of a voted-for candidate to hold the presidency, or if the electoral votes were not “regularly given.”
Some Democrats have suggested that while revising the ECA would be less extensive than a new standalone elections bill, it may also be more likely to fly with some Republicans like Sens. Mitt Romney (R-Utah), Thom Tillis (R-N.C.), and Roger Wicker (R-Miss.).
There is some indication that this course could gain some GOP support. While speaking to reporters on Tuesday, Sen. Susan Collins (R-Maine) indicated that she was on board with the proposal.
Still, the support of these sometimes-swing voters would not be enough to push an ECA reform over the finish line. Like all legislation in the Senate, an ECA revision would need to get over a 60-vote threshold to avoid death-by-filibuster. This means that 10 Republicans would need to support the legislation.
And past experience makes this unlikely. Since the summer of 2021, Democrats have pushed through a slew of elections bills, ranging from huge overhauls of elections that would put them entirely in the control of the federal government to smaller-scale compromise bills.
One such compromise bill, created with the help and input of Sen. Joe Manchin (D-W. Va.), won the support of Collins. But every other bill proposed by Democrats has faced unanimous opposition and filibuster by Republicans, and this track record makes it unlikely that Democrats can garner the support for a reworking of the ECA.
Other Democrats Call for Ending Filibuster to Pass More Comprehensive Election Law
The second option that Democrats have been peddling is a rematch for the “John R. Lewis Voting Rights Advancement Act” (H.R. 4).
H.R. 4, introduced during the summer of 2021 by Rep. Terri Sewell (D-Ala.), is less wide-reaching than other bills Democrats have proposed.
In contrast to the “For the People Act,” which would mandate that states allow felons to vote and which critics say would effectively legalize voting by illegal aliens, H.R. 4’s biggest change to voting laws would be to restore federal preclearance requirements initially laid out under the VRA.
Specifically, under the VRA states that the federal government considered as having a “history of discrimination” were barred from changing their election laws without federal “preclearance,” or federal approval.
H.R. 4 would reintroduce this provision to respond to the Supreme Court’s 2013 decision in Shelby v. Holder. In that case, the Supreme Court ruled that the situation of minorities had changed so dramatically between the provision’s introduction in 1965 and 2013 that the “extraordinary measures” employed by the bill could no longer be justified, and the court thus struck the provision down as unconstitutional.
Speaking on the House floor, H.R. 4 sponsor Sewell said that her legislation would “restore key provisions of the VRA that were gutted by the Supreme Court” and “would once again prohibit any state or jurisdiction with a history of discrimination from implementing any election changes without receiving preclearance from U.S. Department of Justice.”
In the past, this bill has passed the House but faced death-by-filibuster in the Senate.
To overcome the objections of one-half of the nation’s elected senators, many Democrats are calling for a wholesale destruction of the filibuster, as this is the only way that Democrats can pass such an unpopular bill through the deliberative upper chamber.
Technically, Democrats could do this. Under the “nuclear option,” Senate rules can be changed by a simple majority vote. However, this course has been one that senators from both parties have long been hesitant to use.
While one party is in control of the Senate, such a rule change would indeed give them significant leeway to pass legislation that would otherwise be unable to overcome the filibuster. However, once that same party finds itself in the minority, it will have practically no ability to stop legislation from opponents that it considers bad.
Sen. Kyrsten Sinema (D-Ariz.), who has in the past opposed making changes to the filibuster, made just such a point while defending the filibuster during an appearance on “The View.”
Sinema argued that the filibuster was not a good or a bad thing in and of itself, but is nothing more than “a tool” whose value, Sinema said, comes from “the way we utilize it.” Specifically, Sinema called it a tool “for the protection of the minority,” and noted that Democrats had used it to stop GOP legislation just as often as the GOP used it to stop Democrats’ legislation.
Also opposed to wholesale filibuster reform is Manchin, a longtime ally of Sinema.
In the aftermath of the 2020 election, when it became clear that Democrats would take the Senate in a surprise flip, Manchin took to Fox News to calm moderate and GOP fears over what the party would do.
Manchin noted during that appearance that Democrats could change the filibuster. But, he said, such a course would require the consent of all 50 Democrats and Vice President Kamala Harris. Manchin vowed then that he would not be the 50th Democrat to vote for such a course.
“I’m supporting the filibuster. I’m gonna continue to support the filibuster. I think it defines who we are as a Senate,” Manchin said during that appearance.
Sen. Dianne Feinstein (D-Calif.) has also expressed lukewarm opposition to a filibuster change to pass voting legislation in the past. The long-serving Californian told Forbes in an interview that “If democracy were in jeopardy, I would want to protect it,” but said that she “[doesn’t] see it being in jeopardy right now.”
And these are not the only senators who have opposed a filibuster change in the past. Practically every Democratic lawmaker has, at some point over the past four years, expressed only tepid support for such a course, while many others have flat out opposed the proposal.
Thus, this second course also lacks the votes on both sides of the aisle, as it is all but guaranteed that no Republican will aid Democrats in this endeavor.
Despite this renewed push for electoral reform, Democrats are unlikely to be able to make any signifiant changes to election law unless the situation on Capitol Hill transforms dramatically. Thus far, there has been no indication that such a transformation is imminent, especially as many GOP senators face tough reelection battles later this year.