At crucial moments in American history when democracy was under threat, Congress took decisive action to protect voting rights—the 15th Amendment, the 19th Amendment, the Voting Rights Act of 1965.
This week is going to be a similarly pivotal time for American democracy. After failing to lawfully win the 2020 election and then unlawfully overturn it, the Republican Party has had a single-minded focus on rigging the country’s voting and election system to their advantage, while congressional Democrats have passed no legislation to stop them.
Now Democrats are mounting an aggressive last-ditch effort to protect voting rights, with Senate Majority Leader Chuck Schumer promising a vote on changing the Senate rules to pass the Freedom to Vote Act and John Lewis Voting Rights Advancement Act by Martin Luther King Jr. Day. President Joe Biden and Vice President Kamala Harris are traveling to Georgia on Tuesday to deliver major speeches to build public support for this effort.
The stakes couldn’t be higher: If Democrats don’t pass these voting rights bills—and soon—the 2022 election will take place under voting restrictions designed to suppress turnout among Democratic-leaning constituencies, gerrymandered maps that roll back fair representation for communities of color, and election subversion laws giving Trump-inspired “Stop the Steal” candidates unprecedented power over election administration and how votes are counted. Collectively, these anti-democratic measures could cost Democrats control of Congress and crucial state offices in 2022, making it much easier for Republicans to rig the 2024 election.
More than just giving Republicans a temporary tactical advantage, the GOP’s bigger project is to consolidate and wield power no matter the views of a majority of voters, which is antithetical to the entire notion of representative democracy.
“There is a fear that Republicans have about facing the people,” says former Obama administration Attorney General Eric Holder. “They are concerned that this changing America that is less rural, that is more urban, that is younger, that is more diverse—they don’t think that they can win with that changing electorate. And as a result, they want to put in place rules and mechanisms that will ensure that they keep power, even if they don’t retain popular support. They are basically signing off on a political apartheid system.”
Voting rights experts say Democrats, after failing to act in 2021, have a very narrow window to pass legislation that would roll back the GOP’s anti-democratic efforts before voters go to the polls in 2022.
“We are in a crisis of timing,” says Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice. “The longer we wait, the more limited the impact of the reforms are.”
Weiser points out that if the Freedom to Vote Act passed this month, its ban on partisan gerrymandering would immediately go into effect and new lawsuits could quickly be filed against unfair maps or existing lawsuits amended. But the chances of success diminish the closer it is to an election, as candidates run for office, voters request ballots, and election officials prepare to count votes. Texas, for example, has primary elections scheduled for March 1, with candidates already running and early voting beginning February 14. “As the election calendar accelerates, the remedies that a court can consider or the time to put in place alternative maps shrinks,” says Weiser.
Time is also running out to put in place measures expanding access to the ballot and blocking GOP efforts to roll back voting opportunities. Weiser said policies in the Freedom to Vote Act such as same-day registration, no-excuse absentee voting, and two weeks of early voting could still be implemented in 2022—and the number of states that quickly expanded voting options during the pandemic provides a model for how it could be done. But the more time that election officials have, the better the implementation will be and the smoother the process for voters.
Of course, all of these changes are theoretical if Democrats cannot overcome the fundamental asymmetry that has marked the fight over voting rights for the past year.
Republicans at the state-level have passed a slew of anti-democracy measures through simple majority, party-line votes, but by stubbornly supporting the filibuster Democratic Sens. Joe Manchin and Kyrsten Sinema have allowed 41 GOP senators representing just 21 percent of the country to block any effort to protect voting rights.
“If the right to vote is the cornerstone of our democracy, then how can we in good conscience allow for a situation in which the Republican Party can debate and pass voter suppression laws at the state level with only a simple majority vote, but not allow the United States Senate to do the same?” Schumer asked in a letter to senators last week.
That’s not the only imbalance in tactics.
Senate Minority Leader Mitch McConnell has accused Democrats of trying to “break the Senate” by pushing a voting rights exception to the filibuster. “There’s no such thing as a narrow exception,” he said last week.
But McConnell employed precisely such an exception to the filibuster in order to confirm three of Trump’s Supreme Court justices with simple majority votes.
That means Republicans can pass laws to make it harder to vote and GOP-appointed judges can be confirmed to the bench to uphold them through a simple majority process, but Democrats are prevented from using the same rules to stop these efforts.
“The asymmetry cannot hold,” Schumer said on the Senate floor on January 5. “If Senate Republicans continue to abuse the filibuster to prevent this body from acting, then the Senate must adapt.”
Perhaps sensing Democratic momentum on filibuster reform, GOP leaders last week suddenly floated changes to the Electoral Count Act of 1887 in order to lure Manchin and Sinema away from considering rule changes that would allow for the passage of the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. While reforming the ECA is important to prevent another coup-like attempt where Trump pressured Vice President Mike Pence to reject certified Electoral College votes from the states, changes to the act would apply only to presidential elections at the last stage of the process and do nothing to stop the voter suppression and election subversion that occurs before Congress counts the votes.
“If you’re going to rig the game, and then say, ‘Oh, we’ll count the rigged game accurately,’ what good is that?” Schumer told reporters last week.
Holder said ECA reform was “necessary and needed” but called the GOP’s embrace of it “total bullshit” and a “craven tactical attempt to obfuscate” how they’re killing more fundamental voting reform.
“The need for the passage of these bills is now,” Holder said of the Freedom to Vote Act and John Lewis Voting Rights Advancement Act. “There is nothing else to discuss. The question is, where do you stand? Do you stand for American democracy? Or do you stand with those people who are trying to subvert the American system? There is no in-between, you are on one side or the other.”