It’s D-Day for American Democracy

This is crunch time for our democracy.  The Senate has a chance, perhaps its last, to ensure that we have fair elections throughout the nation in 2022 and beyond, by passing two proposed voting rights laws. If the Senate fails to act, then the American experiment in democratic government may come to an end, and soon.  Authoritarian groups are on the march, and they may destroy our hallowed tradition of free elections. 

Republican-dominated legislatures in 19 states have passed highly restrictive voting laws since the 2020 election. Their primary goal to suppress minority voters, but these laws will also make it harder for many white, urban Democrats to cast their ballots.  

Politicians have introduced similar measures in 49 states, according to the Brennan Center for Law and Justice.  They claim that these laws are needed to prevent voting fraud, but that is an excuse built on a lie.  There is no significant voting fraud in the U.S.  These zealots’ real objective to ensure that they stay in power, even if the majority of voters cast ballots for Democrats.  These Republicans are terrified because in many Southern states, like Georgia, the demographic trends are running heavily against them.  The number of minority voters is growing rapidly, while their base of white voters is old and stagnant.    

The current Supreme Court has shown its contempt for voting rights in decisions that gutted the Voting Right Act of 1965, so lawsuits challenging these laws could easily fail.  The only way to stop the states’ vicious assault on voting rights is to pass Federal standards, as set forth in the two proposals.       

Protecting Fair Elections—The Freedom of Voting Act

In mid-September, Senators Amy Klobuchar (D-MN) and Joe Manchin (D-WV) co-sponsored the Freedom of Voting Act.  This is a slimmed-down version of the For The People Act (FTPA), the sweeping voting reform bill that hit a brick wall in the Senate because of Republican opposition. Sen. Chuck Schumer (D-NY) plans to hold a vote on the bill this week.  

Sen. Klobuchar included some major concessions to win Manchin’s support; he was the only Democratic Senator who opposed the FTPA.  However, the revised proposal incorporates most of the FTPA’s key provisions, and the bill would provide desperately needed guardrails for our electoral system. 

The Freedom to Vote Act would require states to provide mail-in ballots, early voting, and automatic voter registration.  Several states already rely almost exclusively on mail-in ballots, and they have higher turnout and virtually no fraud.  All these measures make voting more convenient for voters, particularly blue-collar workers who don’t have a lot of flexibility in their work schedules.  Many minority Americans fall into that category. That is precisely why the new laws limit or prohibit these measures.

The Act would ban unjustified purges of voters from the election rolls.  This is a practice that Georgia and other Southern states have grossly abused to prevent many Black Americans, and other minority voters, from exercising their right to vote.     

The Act would also help to protect state election officials from political interference, which has become a very serious threat after the last election. In 2020, the Georgia Secretary of State, Brad Raffensperger, a Republican and Trump supporter, rejected Trump’s demand that he “find” 12,000 vote so Trump could “win” the election in Georgia. Under Georgia’s new law, elected officials could intervene in the certification process.  They could overrule the Secretary of State’s certification of election results or threaten to fire him if they opposed his decision. 

Major Concessions, But Republicans Won’t Budge  

Democrats have long resisted the use of Voter I.D. requirements, which some state officials have often employed to disenfranchise Black voters. However, in a major concession, Klobuchar included a federal standard for voter identification. Still, the Act would allow a broad array of documents to serve as voter I.D., which should limit abuses. 

In a normal world, Republican Senators, who have complained repeatedly about (non-existent) voter fraud, should welcome this concession on Voter ID.  But surprise! None of them has changed his or her mind and decided to support the Act. 

The Freedom to Vote Act would also ban partisan gerrymandering, which is a grave threat to the proper conduct of elections.  Unlike the FTPA, this proposed law would not require states to set up independent commissions to draw up maps for electoral districts.  That’s a disappointing change, because independent commissions are the best system for preventing gerrymandering. Presumably Klobuchar and Manchin hoped it might attract some Republican votes.  Still, the Act would make it easier to sue state election officials and nullify extremely distorted maps. 

Senator Amy Klobuchar

John Lewis Act--Righting the Supreme Court’s Wrong

The John Lewis Voting Rights Amendment Act would protect minority voters against discriminatory laws and regulations.  This Act would supersede Supreme Court rulings that have gutted the two key provisions of the Voting Rights Act (VRA) of 1965.  The VRA required states with a history of racial discrimination to get pre-clearance of proposed voting laws from the Department of Justice, and it also allowed plaintiffs to file suits challenging laws that disenfranchised minority voters. 

But in Shelby County v. Holder (2013), the Supreme Court ruled that Section 5 of the VRA, the pre-clearance provision, was no longer necessary because racial discrimination had ceased to be an issue in elections Southern states.  That was not based on reality; after the decision, many states immediately passed discriminatory voting laws. 

Then in August 2021, the Court undercut Section 2 of the VRA, which allowed lawsuits against discriminatory laws, in its Brnovich decision.  The Court upheld two Arizona laws that appeared reasonable on the surface but were clearly designed to suppress votes by Native Americans, Black Americans and Hispanics.  The Court deferred to state officials on the grounds that they were trying to avoid voting fraud—which has not been a problem in Arizona.  The Supreme Court is Trampling on Voting Rights Again.  

The Court has set a high bar for bringing legal actions under Section 2.  This decision will make it difficult to overturn the restrictive voting laws that Georgia, Florida, Texas and several other states have recently passed.  Although the Department of Justice has filed a suit challenging the Georgia law, which is blatantly targeted at Black Americans, the government may not win, because of the Brnovich ruling. 

Time to Tweak the Filibuster Rule  

Unfortunately, Senate Minority Leader Mitch McConnell (R-KY) and his colleagues have shown no interest in stopping the attack on voting rights.  Instead, McConnell intones about the sanctity of “states’ rights” …as though the Federal government should give them free rein to rig their elections.  It’s unlikely that any Republican Senator will support the two proposed voting reform bills. 

So the only way for the Democrats to pass these measures is by changing the filibuster rule.  Senators Joe Manchin and Kyrsten Sinema (D-AZ) have said that they will not vote to eliminate the filibuster.  But there’s a solution, a less drastic tweak: creating a limited carve-out to the Senate’s filibuster rule. 

The carve-out would exempt proposed legislation that is intended to protect fundamental constitutional rights, such as the right to vote.  The carve-out resolution would specifically refer to these two voting rights bills.  The filibuster rule would still apply to all other legislation.   

Modifying the filibuster rule only requires a majority vote, unlike proposed legislation, which can only be passed with at least 60 votes.  Sen. McConnell and other Republicans would have you believe that the filibuster rule is set in stone, but that is not true.  The rule has been significantly modified twice in the last 10 years for judicial nominations…and the architect of the second change was Sen. Mitch McConnell.

What Can You Do? 

Contact your Senators and ask them to support the Freedom to Vote Act and the John Lewis Voting Rights Amendment Act.   Tell them they should also vote for the carve-out to the filibuster rule, so these two Acts can become law.  Use this interactive Senator Contact Form to get in touch with your Senators via email. 

If you have relatives living in Arizona and West Virginia, ask them to lobby Sen. Manchin and Sen. Sinema to support the carve-out.   We are running out of time to save our democracy from authoritarians who are determined to overturn our system of free elections and replace it with one-party rule.    

The Wall Street Democrat