What Happens Next on Voting Rights Is Highly Unlikely to Be Enough
by Neil H. Buchanan
It should come as no surprise that Senate Minority Leader Mitch McConnell is once again operating in bad faith. Indeed, he barely tries to hide it anymore. When he announced his opposition to Joe Manchin's watering down of the For the People Act (H.R.1, S.1), McConnell grabbed onto Stacey Abrams's willingness not to oppose the replacement bill and snidely declaimed that "the plan endorsed by Stacey Abrams is no compromise." Why? "It still subverts the First Amendment to supercharge cancel culture and the left's name-and-shame campaign model. It takes redistricting away from state legislatures and hands it over to computers."
Having regurgitated his party's culture wars nonsense ("cancel culture" showing up here apparently as McConnell's take on forcing large donors to be publicly identified) before stoking mindless technophobia, McConnell then said that the bill's "rotten core" is "an assault on the fundamental idea that states, not the federal government, should decide how to run their own elections." So the way that states run elections for federal office is not a federal concern? We have moved from states as co-sovereigns whose interests the federal government must respect to states as the only sovereigns who matter. Now we know.
None of that is surprising, given McConnell's long and ugly track record. I was genuinely surprised, however, that he mocked the very idea of compromise. After all, Manchin caused much teeth-grinding among Democrats by including national voter ID requirements -- long a top Republican priority -- in his bill, demonstrating that Manchin at least understands the nature of bargaining. But McConnell ridiculed the gesture by saying that, gee, Democrats were always so opposed to voter ID, and now they are agreeing to it? McConnell took this as proof that Democrats were lying all along.
So the answer to "Let's compromise" is: "See, I knew you didn't care about this stuff! Now give us everything we want." If McConnell is trying to prove Manchin and other supposedly moderate Democrats are fools for taking his party's stated concerns about partisanship seriously, he is doing a great job of it. And not one Senate Republican could be found to cast a "Let's at least allow debate" free vote, even knowing that Republicans had the votes to stop it.
Here, I want to discuss the substance of the voting rights question and how something like H.R.1 could move forward.
As I noted in yesterday's column, the emerging consensus after the Senate Republicans filibustered For the People is that Democrats must now return to the states, to press their case for voting rights to state legislatures. Given that Georgia's Republicans refused to budge even after the baseball all-star game was moved from Atlanta, and even after major corporations came out against that state's voter suppression bill (which included a provision making it easier for Republicans to negate elections that they lose), it is difficult to see how this will help.
After all, Republicans have proved once again that they can brazen out yet another political storm. When Arizona's Republicans subsequently pushed through a similar measure, the collective response from corporate America was near silence; and when Texas' Republicans soon return to pass their briefly derailed bill (in a state that was already an ugly model of voter suppression), there will be at most a collective shaking of heads accompanied by, "What are you gonna do?"
Even so, what are you gonna do? In December 2016, I wrote a Dorf on Law column under the headline: "The Democrats Now Have One, and Only One, Priority." That priority was protecting voting rights, because that is the existential issue that Donald Trump's non-majority win put in play. I even went so far as to argue at the time that Democrats should refuse to vote for bills that they might otherwise support (my example being an infrastructure bill, proving that everything old is new again) to try to extract concessions on voting rights, because they are so fundamentally important.
The importance of the issue has, of course, only become greater since January 6 of this year, with Republicans nationwide passing laws that will make it impossible for Democrats to win future elections-- and again, even in the rare case where Democrats win an important election, the Republicans will simply declare it fraudulent and install the loser in office.
I do realize, of course, that I wrote a column three months ago in which I suggested that even total Democratic success on voting rights legislation might not be enough to stop the end of meaningful political competition in this country. That is all the more possible because the U.S. Supreme Court might well jump in and invalidate the most important things that Democrats might succeed in passing, including but certainly not limited to anti-gerrymandering provisions.
But again, what else can Democrats do but keep trying?
As so often happens, however, it is self-styled reasonable liberals who are making the problem worse. Take Edward B. Foley, a semi-regular Washington Post columnist who is a law professor at Ohio State. Foley's op-eds are generally quite perceptive, but he recently poured cold water on For the People by describing it as "the Democratic Party’s dream elections bill" and a "wish list" that should not be passed in its current form. Sure enough, the very next morning, NeverTrump Republican Joe Scarborough was on his morning show deriding For the People as a "Democratic wish list" that reasonable people should be willing to weaken.
That might not be a problem if there were some substance to the critique, but Foley's case is weak at best. He says that For the People "contain[s] components that are dubious on policy grounds," but that hot link under "policy grounds" merely leads to a summary of the bill. The only example that he offers is that the bill contains "campaign finance provisions that would increase funds for extremists such as Rep. Marjorie Taylor Greene (R-Ga.)." Forgive me for thinking that this is not a serious concern, given that she has become a fundraising phenomenon already; but more seriously, of course public finance provisions will end up sending money to unappealing candidates. That is what neutral laws do. There is no "policy ground" for saying that a law of general applicability should not be enacted because some vile people will benefit from it.
Beyond that, Foley simply says that the bill contains "items that are poison pills for Republicans, such as mandatory 'same-day' registration and eliminating voter identification requirements for on-demand vote-by-mail." Yet that is only relevant because Manchin is insisting on his fruitless quest to find ten Senate Republicans to support something that they will never support. Getting rid of good provisions -- and please note that Foley does not say that they are bad -- simply because Republicans do not like them is completely self-defeating.
But what about those Republicans? Foley writes: "H.R. 1 passed the House with zero Republican votes, and the companion S.B. 1 has zero GOP support in the Senate. That’s because it’s a purely partisan bill aimed at helping the Democratic Party win elections, not impartial reform designed to foster fair electoral competition in America’s traditional two-party system." That zero Republican support is "because" the bill is partisan? No, it is because Republicans decided in advance not to support anything that Democrats proposed.
More to the point, For the People is not "a purely partisan bill aimed at helping the Democratic Party win elections," unless one thinks that setting up a fair election system on a level playing field is partisan because Democrats are likely to win more elections when the rules are not rigged against them. Foley thus agrees with McConnell's baseless position that everything is partisan, because everything is going to help one party and thus hurt the other. Efforts to un-tilt the playing field, then, are unacceptable because they might help Democrats win elections.
It gets worse. Foley adds this acidic claim: "If Democrats, such as House Speaker Nancy Pelosi (D-Calif.), keep saying that H.R. 1/S.B. 1, as currently drafted, is essential to secure democracy, they are self-deceived or deceitful." Well, sure, every multi-provision bill is complicated, and it is an exaggeration to say that anything is perfect as is. Saying that the bill needs to be passed in its current form, however, is hardly self-deceived or deceitful. Instead, it is a matter of saying that the objections to any particular provision need to be backed up by intellectually honest arguments.
And they most definitely are not. Foley argues, for example, that "[s]ame-day registration is hardly necessary for the preservation of self-government." But why does same-day registration inherently "help Democrats win elections," which is Foley's central concern? A bill without same-day registration guarantees lower voter turnout, and even if it is not an absolutely necessary condition to preserve democracy, same-day voting in no way inherently favors any party. Republicans can register and vote on the same day, too.
Foley then announces that "democracy can survive without on-demand, vote-by-mail for everyone. And reasonable voter ID rules are not voter suppression." Yes, and no. The latter is voter suppression, even if Foley thinks it is a good idea. The former, as with same-day registration, might not literally be foundational to democracy itself, but what exactly is the objection to it?
Finally, Foley reveals where this was going all along:
[A]dopting H.R. 1/S.B. 1 over the objection of every Republican in Congress would be a disaster for democracy, which is still struggling to regain its footing in the aftermath of former president Donald Trump’s “big lie” about the 2020 election being stolen. What’s most imperative for the preservation of democracy in 2022 and 2024 is the willingness of Republicans to accept vote tallies showing that their candidates lost. Achieving this becomes a lot harder if the rules for casting those ballots are forced upon them by a party-line vote — especially when those rules are drawn from the Democratic Party’s wish list of measures that facilitate their own turnout efforts.
As many others have observed (because this has been one of Manchin's talking points), this has it exactly backward. Republican state legislatures are passing (without the hurdle of a filibuster) voter suppression bills on a purely partisan basis, thus changing the rules in a way that will make it easier for them to win elections. Foley (and Manchin) say that it would be "a disaster for democracy" to undo purely partisan election rigging on a purely partisan vote.
Supposedly, Democrats can only defend democracy in a way that the public will accept if they can find some Republicans who are willing to undermine their own party's efforts. Yet everyone will presumptively accept the election results next year and in 2024 if For the People fails and Republicans' onslaught remains in place?
Again, Foley is no doubt arguing in good faith. Not being a politician, he can argue whatever he thinks is sensible. But what he is saying here is nonsense. Yes, it would be great if some Republicans would agree to hold free and fair elections nationwide, in neutrally drawn districts and with sources of campaign funds fully disclosed. But they will not do that, and for obvious reasons. Democrats have to decide what to do next.
It is true that Democrats could respond to objections like Foley's and still come up with a bill that would be an enormous improvement on the way things are today. But it is simply false to describe their proposal as "the Democratic Party’s dream elections bill" or a partisan wish list. Democrats do not have a history of closing polling places in minority neighborhoods. Democrats are willing to stop gerrymandering. Democrats have not denied the franchise to opposing voting groups "with almost surgical precision." There are plenty of ways in which Democrats could have written a truly slanted elections bill, and For the People is not it.
Given the current state of Beltway punditry and its degradation by truly misguided arguments, however, the very best that we can hope for is for Joe Manchin to agree to pass a watered-down version of the bill under an exception to the filibuster. But because I believe that the full version of the For the People Act, enhanced by the John Lewis Voting Rights Act, is the bear minimum necessary to save America from one-party autocracy (and even that might not be enough), whatever Manchin might yet allow to happen will represent at best a missed opportunity.