Is There a Future for Voting-Rights Reform?

Last week, Democrats failed to pass comprehensive voting-rights legislation. That legislation combined major parts of two bills: the first, the Freedom to Vote Act, would have established national standards for early voting and voting by mail, in addition to abolishing partisan gerrymandering; the second, the John R. Lewis Voting Rights Act, would have restored parts of the Voting Rights Act that were struck down by the Supreme Court during the past decade. The push came in response to a wave of laws in Republican-controlled states that have limited voting times and sought to make it harder to vote. But the legislation was doomed by two Democrats, Joe Manchin, of West Virginia, and Kyrsten Sinema, of Arizona, who said that they would not change Senate rules to allow for passage of the legislation with only fifty votes.

Manchin and Sinema had long stated their opposition to changing Senate rules, and some experts have wondered why Democrats have not spent more time trying to pass legislation that might be more likely to gain Republican support and which would address another urgent threat to American democracy: election subversion. In the past year, Donald Trump sought to elect state and federal officeholders who support his false claim that the 2020 election was stolen and would likely do so again should Trump run and lose in 2024. Recently, some Senate Republicans have voiced support for reforming the 1887 Electoral Count Act, which determines how electoral votes are counted. Any fix would hope to prevent one specific subversion scenario in which Congress or the Vice-President tries to overturn the results.

I recently spoke by phone with Wendy Weiser, the vice-president of the Democracy Program at the Brennan Center for Justice, one of many progressive nonprofit groups that encouraged Democrats to push for voting and election reform. During our conversation, which has been edited for length and clarity, we discussed how to distinguish among different threats to fair elections, why Democrats failed in passing voting-rights protections, and the chances of a bipartisan fix to election administration.

What went wrong in terms of Democratic strategy?

I think that this was a significant failure in the Senate, but I think that it has also advanced the ball for protecting voting rights, and it is not the end of the battle. I do think that pushing for this vote and this legislative agenda was absolutely the right thing to do. Congress could not stand by while our voting rights and our democratic institutions were under such brazen assault. There is a moral obligation to act, and Congress also has an obligation to voters—especially voters of color—to stand up for these rights. It has an obligation to try to check these abuses that have been tearing across the country at a very rapid pace, and in very large numbers. And I do think that, the more that these abuses of our voting rights and our democratic institutions go unanswered, the worse and more brazen the attacks become.

You usually try to pass legislation at the beginning of a Presidential term, and now a year is gone. Manchin has been saying the same thing for a long time. Why did it take so long to get to an inevitable place?

It would absolutely have been better if it had been taken up earlier in the Administration. But there was a lot of work done to build consensus in the Democratic caucus and to obtain Republican support. Then there was a lot of work to renegotiate the bills in order to satisfy Senator Manchin.

It seems weird to tell your voters that they are seeing “Jim Crow on steroids,” as Biden did, and then not have the bill come up for nearly a year.

Yes. If this is a moral imperative, why didn’t they start it faster? The political process takes time, but they should certainly have moved faster. I share that frustration. But I do want to acknowledge that there was a lot of work to be done to build support for necessary rule changes. And I would add that the crisis has continued to mount. The relentlessness of new state legislation, for some, needed to get much worse before they could recognize the scope and scale of the crisis.

Do you think Democrats have overemphasized the threat of voter suppression and underemphasized the threat of election subversion?

I think the threat is multifaceted, and I think there is both a tremendous threat of voter suppression and a tremendous threat of election subversion. We are tracking legislation on both. The voter-suppression threats have materialized already; the election-subversion attempts are still nascent.

We have had January 6th.

Yes. I meant that the legislative attacks are still nascent. We are seeing people threatening to run for public office on platforms of election denialism. So we are seeing this infect our politics in significant ways.

You’ve seen some Republicans talk about reforming the Electoral Count Act in the past couple of weeks. Is there a chance for legislation around that?

The Electoral Count Act absolutely has ambiguities that need to be fixed, and, if they are addressed, that would help reduce the risk of a certain form of sabotage at the very end of Presidential elections. But what we are seeing in terms of election subversion across the country is a much broader attack on impartial election administration—one that opens the door to partisan manipulation of election outcomes and sabotage of election results in a much broader array of races, not just the Presidential race, and at many more points in the election process, not just at the finish line.

My view is that the Freedom to Vote Act is actually the strongest response that has been proposed to election subversion. It doesn’t deal with the Electoral Count Act, but for all the other forms of election subversion the strongest protection is, in fact, establishing baseline national standards for election administration and vote-counting rules and for the ways in which voters can use the court system to enforce those rules. One of the principle ways that those who are attacking our institutions from within are trying to enable election subversion is by putting partisan loyalists—who aren’t necessarily committed to the rule of law or to insuring that everyone’s votes are counted properly—in election-administration positions where they can make decisions that would subvert outcomes. And, if those positions don’t have the discretion to take actions that would suppress votes or throw out votes or refuse to certify votes, then that entire strategy can’t succeed, and is no longer worth pursuing.

Is it worth trying a bill that only focusses on election subversion?

The election-subversion bill will not look dramatically different from the Freedom to Vote Act, because to actually protect against election subversion you need to have some baseline rules for vote counting that the Freedom to Vote Act has. I think those who say that you can attack election subversion without enforcing the right to have your vote counted and having some basic level of access that every American can rely on are going to be disappointed.

An election-subversion bill also leaves another huge problem unaddressed: the gerrymandering that’s going on. In Congress, there may not currently be bipartisan support for fixing that. But there is bipartisan support in the country for addressing it. And a narrowly focussed election-subversion bill will not do so.

How do you differentiate between reforms that you support, such as early voting, and reforms that are necessary to protect democracy, if you do differentiate between them at all?

It is anti-democratic to have early voting sliced in a manner that targets African American and Latino voters, for example, and makes it hard for them to participate. And so, while particular rules might not be necessary to democracy, having baseline federal standards that are not manipulable is critical for stopping this strategy of election subversion. The ones that are in the Freedom to Vote Act are best practices that have been supported by Democrats and Republicans in the states and even in Congress.