Steps To An American Voting Rights Act
The right to vote for Americans is currently in jeopardy due to the continued perpetuation that the 2020 election was stolen (the "Big Lie") by Donald Trump and many in the Republican Party. A massive effort is underway in state legislatures across the county to place restrictions and processes on voting and elections to make it more difficult for certain groups (minorities, students, poor and others) and to exercise various legislative controls and interventions in actual election results.My last posting, "Voting Rights Plus Everything Else" discussed the fact that voting rights is the one issue that overshadows all other issues and is the foundational issue to American democracy. I emphasized that it is so easy to get distracted with the many other issues that are popular including Climate Change, Infrastructure, Health Care, Police Reform, Immigration, Civil Rights, Gun Control, SCOTUS Packing, New Statehoods, Campaign Finance & Election Reform, Taxes, Minimum Wage, Women's Rights, etc., etc.
Many of these issues will take months or years to debate and resolve, and will take time to garner full and adequate public and Congressional support. But, voting rights must be resolved immediately and remains the most critical issue to provide a path to save our democracy and provide solutions to so many other issues going forward. With Democrats in narrow control of the House, Senate and Executive Office there seems to be a lack of that serious focus and urgency being paid to this most critical issue. The urgency relates to the absolute necessity of overriding significant Republican efforts at blatant voter suppression in their hopes of winning back the House and Senate in the upcoming midterm elections, now less than 17 months away. Even if measures were passed yesterday they will take time to effectuate within federal and state governments and will likely be subject to preliminary court challenges, interpretations and clarifications.
Many Democrats including President Biden seem to be riding high on the current wave of normalcy and have lost sight of the fact that it will all come crashing down in an instant if a few votes are transferred in the midterm elections. Many astute political observers are predicting that an upcoming Republican takeover of the House is highly probable in the midterm elections. Additionally, Democrats seem to be ignoring the political reality that they do not currently have 60 votes or even 50 votes in the Senate to override a filibuster or institute filibuster changes to address any of their issues; including voting rights.
Also as part of the current political reality many Democrats seem unwilling to accept that many of the items on their campaign and election reforms wish list are simply not ripe for mainstream public acceptance at this time. What is ripe and seems to have widespread public acceptance is making sure that the public is afforded an easy, convenient and fair opportunity to vote and that new and proposed Republican voter suppression efforts are overturned and prohibited in the future. [Opinion piece on Democrats dilemma.]
There are three major components to the voting rights legislative debate: (1) Elements of the 800+ page For The People Act (H.R.1/S.1); (2) Elements of & proposed amendments of S.4263, the John Lewis Voting Rights Advancement Act; and (3) Necessary amendments & clarifications to the Electoral Count Act of 1887.
As part of the voting rights Congressional debate as well as considerations of other legislative issues there has been considerable attention to the filibuster and possible "carve out" exceptions, modifications or outright elimination. Discussions on the future of the filibuster vary depending on the issue and are politically complex and not easily resolved. The filibuster establishes an arbitrary, non-Constitutional Senatorial rule requiring at least 60 votes to approve legislation. It does not apply to budgetary matters under an exception known as "reconciliation" nor to administrative, judicial and Supreme Court appointments under carved out exceptions which have been approved by both Democrats and Republicans under separate actions by a simple majority vote. The Senate reconciliation process may be utilized only three times per year (some exceptions) for spending, revenue, and the federal debt limit matters.
As it relates to voting rights, it is critically important to emphasize the political reality that currently exists. The reconciliation process does not apply and Democrats do not currently have 60 votes to override a Republican filibuster or 50 votes to effect a change in the filibuster rule. Senator Joe Manchin (D-WV), Kyrsten Senema (D-AZ) and a few other Democrats have raised serious objections to eliminating or carving out exceptions to the filibuster. The objectors have suggested on occasion that they might be willing to consider some modification to the filibuster rule but they have not agreed to any specifics. The strong objections are primarily based on two reasons: (1) a belief that bipartisanship in decision making is good and necessary in the U.S. Senate; and (2) when party control changes Democrats will be subject to majority Republican decisions with no ability to stop them. It should be noted that Democrats have used the filibuster many times in the past to stop Republican actions when they have been the minority party. [Summary of current political debate.]
While some Democrats wish the party could unite and pass voting rights legislation by a majority vote and others seem to be acting as if the political reality does not exist, that simply is not possible. Democrats must start with a basic acceptance of the current political reality; otherwise there is no hope. As part of that reality they must proceed with the assumption that they will likely not receive 10 Republican votes to override a filibuster. Considering the timing and urgency of the matter, that leaves only one option: they must work exceedingly hard in negotiations to craft a bill that has nearly 100% of Senate Democratic and Executive Office support and addresses policy concerns of potentially objecting members and proceed to convince all party members of the extreme importance and the fact that there is no other option other than passing the bill with 50 Democratic votes and most likely the tie breaking vote of the Vice President. [UPDATE 6/16/21: Manchin outlines policy requirements for For The People Act] & [Manchin says 55 vote filibuster might be possible]
As mentioned above, the matter is exceedingly urgent, it is the most important issue facing the Biden Administration and the Democratic party, and it is one of the most complex legislative construction endeavors in the history of the country. It requires all hands on board and an intensive effort on the part of all Democratic members and the President.
The following is a starting point and step by step outline of actions that could lead to passage of voting rights legislation.
Start with the fact that Senators Manchin and Lisa Murkowski (R-AK) wrote a letter to Congressional members on May 17, 2021. They put their feelings and positions in writing to their colleagues. They must be held accountable. In their letter they said:
“Protecting Americans’ access to democracy has not been a partisan issue for the past 56 years, and we must not allow it to become one now. . . Inaction is not an option. Congress must come together — just as we have done time and again — to reaffirm our longstanding bipartisan commitment to free, accessible, and secure elections for all… We can do this. We must do this.”
This letter must be the foundation of the negotiating effort and launch pad for what must be done. Senator Manchin's insistence on bipartisanship and preservation of the filibuster must be presented to him directly and challenged with his own words -- "We can do this. We must do this." Manchin must be forced to confront his own dilemma of the reality that if Congress will not come together then what is the option if as he says, "Inaction is not an option."
The two Senators point out and remind in their heartfelt letter that:
"Voting Rights Act Reauthorization and Amendments Act of 2006 passed the United States Senate 98-0 without a single dissenting vote. Protecting Americans’ access to democracy has not been a partisan issue for the past 56 years, and we must not allow it to become one now..."
I would suggest the following steps to passing voting rights legislation.
1. H.R.1/S.1 For The People Act
This 800-page bill comprising a Democratic wish list of election and campaign reform issues must be stripped-down and focused on just making it easy, convenient and fair for people to vote and to override Republican voter suppression efforts. Other sections, many of which are very important but not essential to the preservation of our democracy, need to be deferred to a later time for further discussion and consideration. Increasing voter access via polling places and drop boxes, allowing for no-excuse mail voting, at least 15 days of early voting, eliminating nonsense restrictions like water to voters, polling intimidators, etc. and overriding other Republican suppression efforts must be included. Other sections, particularly controversial campaign financing sections and even gerrymandering sections are still highly controversial, even among some conservative Democrats and Independents, and should be debated later.
Additionally, there has been recent discussion of important sections that need to be added to the bill nullifying Republican efforts that may provide for legislative overrides of election results or other interference in the state election certification process. Overall the bill should assure that elections are free, easy, convenient and secure for the voting public.
The bill and proposed amendments by Senator Manchin, with 47 cosponsors, is designed to address the SCOTUS concerns (2013 Shelby County v Holder decision) of preclearance based on old data (i.e. decades-old misdeeds, rather than current discriminatory practices) and discrimination against certain states (i.e. unequal burdens on certain states) by requiring preclearance for all 50 states. This bill needs to be finally negotiated with amendments among Democrats. [Discussion of Manchin proposal & relation to other efforts.]
Note: Now there is a new urgency with the July 1, 2021, Supreme Court decision in Brnovich v. Democratic National Committee which will further limit challenges under the Voting Rights Act. [Article on the decision.]
3. Electoral Count Act of 1887
An article in The Bulwark has exposed the many faults of this 1887 and the serious need to update and clarify this act to among other things, exclude any Congressional override of certified state elections. This must be included as part of the overall effort to address voting rights. This is the Act that calls for the January 6th meeting and the supposed perfunctory Congressional approval which precipitated the insurrection. The Act is a literal joke and a nightmare of legal mumbo-jumbo which is discussed in this article. I think many people simply assumed that this was somehow addressed in HR1/S1.
4. Combine 1,2, & 3 into one new American Voting Rights Act
5. Launch a major, nationwide educational campaign on the new bill
6. Put the bill to a vote of the Senate before Labor Day
6. Put the bill to a vote of the Senate before Labor Day
Encourage willing and concerned Republicans to join in the effort with their support.
7. If Republicans filibuster the bill carve out a “voting rights exception” to the filibuster.
8. Convince & Hold Accountable Manchin and any other doubters
There is no other way if you are to hold to your statement that, "We must do this... Inaction is not an option." To save our democracy and preserve free and fair elections for the public the Act must be passed with at least 50 Democratic votes + VP if needed (i.e. if no Republican votes).
Read Manchin's proposed changes below, obtained by CNN. Manchin's proposal is detailed and was immediately supported by Stacey Abrams and immediately rejected by Senator Majority Leader Mitch McConnell (R-KY) who said he expected all Republican Senators to vote against it. [See GOP reaction article].
UPDATE#2: On June 22, 2021, the U.S. Senate voted on a cloture motion to end the filibuster and proceed with discussion of the For The People Act which would require 60 votes to continue. All 50 Republican Senators voted to stop discussion and all 50 Democratic Senators voted to proceed. Discussion of Voting Rights in the U.S. Senate is stalled for the time being. [See article]
UPDATE#3: (7/28/21) Finally, months too late, as reported by the Washington Post, a small group of Senate Democrats convened to hammer out a revised voting rights bill that might be released as soon as this week after Republicans filibustered the sweeping, For the People Act last month. Reportedly, the bill will include Senator Manchin's concerns addressed in his 3-page framework and the adoption strategy seems to be headed toward "a small carve out on filibuster for voting rights." [See the WP newsletter report] [7/30/21, Politico article on new voting rights bill] [7/30/21 ABC News article summarizing recent progress]
UPDATE#4: (8/12/21) Brief article summarizing the urgency & uncertainty of Democrats' ability in addressing Voting Rights and therein the future of democracy in the U.S. Nothing is more important.
Democrats Are Running Out of Time to Protect Voting Rights, Mother Jones, by Ari Berman
As Republicans pass state-level restrictions and prepare to gerrymander, national legislation is stalled.
Democrats Are Running Out of Time to Protect Voting Rights, Mother Jones, by Ari Berman
As Republicans pass state-level restrictions and prepare to gerrymander, national legislation is stalled.
UPDATE#5: (8/24/21) In May 2021, Senators Joe Manchin(D-WV) and Lisa Murkowski (R-AK) wrote to the House & Senate leadership reminding that:
" Since enactment, the Voting Rights Act of 1965 has been reauthorized and amended five times with large, bipartisan majorities. Most recently, The Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 passed the United States Senate 98-0 without a single dissenting vote. Protecting Americans’ access to democracy has not been a partisan issue for the past 56 years, and we must not allow it to become one now." [Emphasis added]
Bipartisanship has now left the voting rights issue. On August 24, 2001, H R 4, the John R. Lewis Voting Rights Advancement Act, passed the U.S. House of Representatives completely along party lines, with 219 Democrats in favor and all 212 Republicans opposed. It is expected that the bill will now face steep Republican opposition in the U.S. Senate. Democrats say the bill would make it more difficult for states to restrict future voting access and Republicans say the bill is federal overreach into the state's role in election processes. In June Senate Republicans blocked approval of H.R.1, the For The People Act the other major voting rights bill sponsored by Democrats [See Update#2 above].
UPDATE#6: (9/8/21)
(1) Dems: Save the bipartisan hard infrastructure & #VotingRights bills by linking them & dropping the $3.5T reconciliation bill until after the Midterms. Dems & Biden need a big boost for Midterms.
(2) Democrats, you must accept the fact that the $3.5T soft infrastructure reconciliation proposal is not going to pass this fall. Drastic cuts will only weaken the programs. It needs much more development, discussion and public education. You can't expect the public to accept such a complex bill which has not even been fully drafted or released yet. Further pursuit now is only going to delay or deny the hard infrastructure and voting rights legislation which will doom Midterm success. The future of democracy and critical legislation depends on Democrats keeping and expanding Congressional control.
(3) In the HOUSE, Speaker Pelosi must call for the preparation of a substitute for H.R.4, (John R. Lewis Voting Rights Advancement Act of 2021, passed 8/24/21)) to include elements of HR1, & the Electoral Count Act which are acceptable to all Democrats including Senator Manchin & other Democratic moderates. At this point, Democrats must accept all of the voting rights provisions that can be approved by all Democrats. Other desired voting rights provisions can be worked on following the 2022 Midterms. The Substitute Voting Rights bill should be linked to the bipartisan $1.2T "Hard Infrastructure" that passed the Senate with 19 Republican votes. The House should pass the linked bills and send them to the Senate.
(4) In the SENATE; Senate Majority Leader Schumer should bring the linked Infrastructure & Voting Rights bills up for a vote. There should be an incentive for at least some of the 19 Republicans to support the combined package & all Democratic Senators should be supportive because the bills include their previously approved Infrastructure votes & their recommendations for Voting Rights legislation. Only 10 Republicans are needed. If there are not 10 Republicans, Democratic Senators MUST carve-out a Voting Rights exception to the filibuster and pass the combined package with 51 votes. The public will know that they tried to include Republicans to support critical Infrastructure needs and Voting Rights for ALL voters.
(5) On September 14, 2021, Senate Democrats introduced the Freedom to Vote Act. Here is Senator Klobuchar's summary: https://tinyurl.com/3w579mcd
Here is the full text: https://tinyurl.com/f4zn3e2
Epilogue #1: (6/23/21) Unfortunately, Democrats have skipped some critical steps in the process and have basically taken Step #1; put it to a vote -- Step #6 -- and proved that Republicans would continue to filibuster the bill with their unanimous 50 votes against cloture.
All is not lost yet, but it is essential that Democrats quickly take stock and accelerate actions to complete the missing steps.
The three major elements of voting rights legislation (listed above) must be combined and carefully crafted to address the most critical aspects necessary to override the widespread Republican Party voter suppression laws and legislation underway in statehouses across the country. This new American Voting Rights Act must have 100% support from all Senate Democrats and the Biden Administration.
Then proceed with Steps 5, 6, 7, & 8. Step #5 is exceedingly important and must be thorough and comprehensive.
Epilogue #2: (12/2/21) Unfortunately, Democratic leadership and POTUS have let the major reforms needed on voting rights and voter suppression slip away.
The leadership, distracted by infrastructure and Build Back Better, failed to prioritize and deal with the urgency of the lynchpin of American democracy -- the right to vote -- upon which all other issues depend.
While the GOP has been emphatic and successful in frustrating and altering that right to their advantage, POTUS, with the power of the bully pulpit, should have taken control with a vengeance to defend that fundamental right; including the critical rationale and need to carve out an exception to the Senate filibuster rule in order to enact reforms.
He should have prioritized and explained the importance of voting rights above all else. He should have quashed the nonsensical internal bickering within his party and presented the public with relentless, hard hitting, flag waving oratory to save the U.S. democracy. He should have also individually dealt seriously with any unreasonable obstruction or interference by members of his party.
Instead, he let it get out of hand and has placed the future of U.S. democracy on the brink. Even if Democrats were to pass some reform legislation now; it's probably too late to be effective against a barrage of GOP lawsuits that would delay or halt implementation prior to the November 8, 2022 Midterm elections. Those elections will likely determine the future of democracy in America.
Additionally, it appears that even the legislation that is being proposed does not address the intrinsic legal ambiguity within the antiquated Electoral Count Act of 1887 which was the root cause and erroneous justification for the January 6, 2021 insurrection and assault on the American democracy.
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Note: See comments below.
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