In 2021, Democrats tried a number of times to pass federal voting rights legislation, and each time, it went something like this: Bills cleared the House only to meet their demise in the Senate when Republicans refused to cooperate and some Democrats rejected proposed rule changes to the filibuster that would allow a vote along party lines.
But last week, Democrats announced they would bring voting rights to the fore once again. Seemingly energized by the first anniversary of the Jan. 6 insurrection on the U.S. Capitol, when supporters of then-President Donald Trump tried to prevent the certification of the results of the 2020 presidential election, Senate Majority Leader Chuck Schumer said his chamber would soon vote on easing filibuster rules so that voting rights legislation could possibly — finally — make it across the finish line.
We know that Republicans are united against Democrats’ voting-related measures, so for Schumer’s plan to work, two senators from his 50-member caucus, West Virginia’s Joe Manchin and Arizona’s Kyrsten Sinema, would need to abandon their long-held reluctance — or downright opposition — to altering Senate procedures. But that might be a long shot. Sinema, for her part, reportedly told colleagues that she was against any motion to alter the 60-vote threshold, while Manchin signaled openness only to modest rule changes. So, assuming neither senator budges, why are Democrats taking this up again?
The obvious answer is that the party, its supporters and voting rights activists want to see movement on this issue. And if there’s even a slim chance that Manchin and Sinema miraculously reverse their stance on the filibuster, the party wants to capitalize on that. Yet several political scientists I spoke with warned that the effort to move a voting bill forward may be largely symbolic at this point.
It will also likely be one-sided. Consider that in the mid- to late 19th century, particularly when political rights for Black Americans were on the line, the handful of voting and civil rights laws that made it through Congress were approved by party-line votes.1 It’s likely, too, that if voting rights laws succeed today, the case would be no different. “We are back to a moment where only one party is a full-throated defender of voting rights,” said Daniel Ziblatt, a government professor at Harvard University. “So this, unfortunately, leaves us in a situation where one party must act alone.”
But even if Democrats aren’t able to pass voting rights legislation, they can at least establish themselves as the party in favor of democracy and voting rights. The question is, will this be enough for their base? At least one expert told me that the party risks looking feckless, if not useless, if they cannot deliver.
“You don’t get points for trying; you get points for succeeding,” said Nicholas Stephanopoulos, a professor of law at Harvard Law School. “So the party base who cares about voting rights as an issue are not going to care that Democrats tried and failed. If anything, they’ll be irritated and disappointed if the bill has a lot of salience and still doesn’t pass.”
Then again, other experts I spoke with said that Democrats don’t have much to lose by trying. Particularly now, on the heels of the first anniversary of Jan. 6, there’s a real window for Democrats to highlight their commitment to preserving Americans’ right to vote. That could be a winning message for the party, too, and a way to contrast themselves with Republicans, who recently pushed a number of laws at the state level aimed at restricting voting access.
“We’re living in a precarious time, and Democrats in Congress can’t let these procedural rules get in the way of strengthening democracy, especially as it relates to voting rights,” said Spencer Overton, a professor of law at George Washington University Law School and the president of the Joint Center for Political and Economic Studies. “If we don’t step up to the plate and people don’t try to preserve democracy, we’ll end up being in a situation where you have a minority of people who control the country, and that minority is not going to reflect the diversity of our nation.”
One of the bills Schumer hopes to get through the Senate — the Freedom to Vote Act — is a slimmed-down version of the omnibus For the People Act. Backed by every Senate Democrat, this newest bill would enact policies establishing automatic voter registration, protecting against election subversion and preventing partisan gerrymandering, among other things. (To read more about this and other bills Democrats have considered, check out this article by my colleague Nathaniel Rakich.) In October, though, the last time the bill was taken up by Congress, Senate Republicans filibustered consideration of the measure before it could reach the floor for debate. The GOP has since shown little appetite for negotiation, which means that Democrats are going to have to pass the measure on their own.
One thing now working in Democrats’ favor is that the bill — and passing voting-reform measures broadly — remains popular with the public. When likely voters were given a short description of the Freedom to Vote Act, 85 percent of Democrats and 54 percent of Republicans said they supported it strongly or somewhat, according to a September Data for Progress poll. Moreover, when all respondents learned more about the various provisions of the bill, support remained overwhelmingly high. And, strikingly, according to a December University of Massachusetts Amherst poll, most Americans said they were against partisan interference in elections: By 61 percent to 19 percent, they opposed making it easier for state legislatures to change election results if they believed there were problems.
Timing is likely another reason why we’re hearing about voting rights again. Schumer’s announcement coincided with two important dates that align well with pro-democratic priorities: the first anniversary of the Jan. 6 attack and Martin Luther King Jr. Day. King’s family even urged the public not to celebrate the holiday if Congress didn’t pass any voting rights legislation. It’s also possible given the recent failure to pass President Biden’s Build Back Better Act and the upcoming midterm elections that Democrats are simply running out of options they can actively pursue.
According to Charles Stewart III, a professor of political science at the Massachusetts Institute of Technology, Democrats don’t have much to lose by continually bringing up voting rights. “There’s a low probability of the bill passing in any case, but the probability is zero if you don’t try,” he said. Stewart pointed to past research that found that most constituents don’t know — or don’t care — about legislative procedure, so any action the Democrats take at this point “signals that they’re serious and provides a way for Democrats to contrast themselves with Republicans.” Even if Democrats fail, Stewart added, Biden’s approval ratings are already sagging, so a Hail Mary play on this issue might be the party’s best bet. “If this fails, there will be articles written along the lines of, ‘Here is another Biden initiative that goes down in flames.’ But I think that won’t hurt all that much because there’s already been a lot of those stories. And that’s still better than the alternative, which is for Democrats to just skulk away from the fight.”
And, to be clear, this isn’t the first time a political party has attempted to pass legislation without having a clear majority onboard. In fact, Democrats’ efforts today could be compared to Republicans’ repeated attempts — and failures — to gut the Affordable Care Act. But while reforming the health-care system and certain health-insurance measures typically enjoys bipartisan support, certain voting and civil rights legislation has historically been one-sided. That presents even more challenges for Democrats this year, considering they have only a simple majority in the Senate and need the sign-on of every caucus member to get legislation through.
In essence, that means Democrats can’t have any defectors on their side should they want voting rights to pass. But while the party seems to agree on voting rights, there’s no consensus on nuking the filibuster to pass the legislation.
One idea that had been floated, in addition to passing a massive voting rights bill, was reforming the Electoral Count Act of 1887, whose loopholes and ambiguities allowed Trump and his supporters to try to stop the counting of electoral votes to prevent Biden from rightly assuming the presidency. “I could imagine a world where this is the lowest common denominator of agreement between the two parties — which they would obviously need in the absence of any carveout of the filibuster,” said Sarah Binder, a professor of political science at George Washington University. “It’s hanging out there as a potential sweet spot that both parties might have interest in going to the table over.” But it’s clear from the White House’s recent statement on the matter that potential negotiation on the ECA won’t deter Democrats from their larger ambitions of achieving voting reform.
This brings us back to the Freedom to Vote Act, which seems to be what Democrats are prioritizing now. Of course, even in the world in which it passes, there’s research suggesting it doesn’t go far enough on its own to counteract the various bills Republican-dominated legislatures passed last year that effectively make it harder to vote. But those flaws alone won’t likely distract Democrats from trying to present themselves as pro-democratic so they can contrast their willingness to fight against Republicans’ extremism and voter polarization. And it’s possible, according to Overton of the Joint Center for Political and Economic Studies, that this might be enough. “The people who are undermining minority voting rights aren’t afraid of how they’re going to look,” he said, “so why shouldn’t people who are trying to protect the freedom to vote step up [to] the plate and be bold about it?”