As the United States Senate prepares for its holiday recess on Monday, federal legislation proposed by Democrats to protect voting rights stands all but dead due to repeated filibusters by Republicans. The filibuster, a tactic to obstruct legislative business that requires at least 60 votes to bypass, has been invoked 4 times by Republicans this year to block the advancement of voting rights and election reform bills, including the For the People Act in June and August, the Freedom to Vote Act (a modified version of the For the People Act) in October, and the John Lewis Voting Rights Act in November.
The failure to pass federal voting protections comes as Republican-controlled state governments, spurred on by Donald Trump’s false allegations of electoral fraud in 2020, have passed a slew of voting restrictions making it harder for communities of color to vote, gerrymandered electoral maps that dilute non-white political representation, and measures that would allow Republican legislatures to take control of election administration and disqualify votes from overwhelmingly non-white communities. The filibuster has hamstrung any attempts by federal lawmakers to nullify those changes and ensure equal democratic representation.
The groundwork for these racially-targeted restrictions was laid in 2013 by a landmark Supreme Court decision that nullified a key provision from the 1965 Voting Rights Act. Originally, the Voting Rights Act required that states and localities with histories of discriminatory voting practices gain preclearance for any changes to election laws from the federal government.
However, the Court ruled in the 2013 case Shelby County v. Holder that the provision of the act containing the coverage formula determining whether jurisdictions would be subject to preclearance was unconstitutional, meaning it would apply to no one. Zack Ford, press secretary of progressive advocacy group Alliance for Justice, said that the ruling “eliminated the accountability to prevent these laws from ever getting passed in the first place,” enabling voting restrictions targeting communities of color like the ones recently enacted.
The Court doubled down on dismantling the Voting Rights Act earlier this year in Brnovich v. Democratic National Committee when it greatly narrowed the standard by which laws are considered discriminatory. The ruling pushed aside historical and socioeconomic considerations and established that, to a limit not clearly drawn, it is legally tolerable for voting laws to have disparate racial impacts so long as they do not explicitly mention race. “What the Supreme Court said,” Ford described, “is that if the lawmakers didn’t explicitly say they were trying to be racist, it doesn’t matter if the law ended up having a racist impact.”
Since Shelby County v. Holder, Republicans have enacted laws and practices in the former Jim Crow states that make it markedly harder for people of color to vote. The Leadership Conference Education Fund, for example, found that 1,688 polling places closed between 2012 and 2018 in counties previously subject to preclearance, creating lines lasting hours in counties with huge non-white populations. Strict photo ID requirements are another example, as the American Civil Liberties Union notes that up to 25% of voting-age African-Americans lack a photo ID compared to 8% of whites.
However, Democrats’ successful mobilization of people of color allowed them to take the House of Representatives in 2018, the presidency in 2020, and the Senate with two victories in Georgia in 2021. This set off a cascade of laws in Republican-controlled states in 2021 aimed at curbing minority mobilization and disenfranchising communities of color, emboldened by Donald Trump’s false accusations of being cheated out of a second term. Laura Williamson, a senior policy analyst at Demos, a progressive think tank, said that the laws are a result of Republicans losing a democratic election, characterizing them as “a reaction to the exercise of political power, particularly in black and brown communities.”
According to the Brennan Center for Justice, 33 laws creating barriers to voter access have been passed in 19 states and more than 400 have been introduced. Williamson pointed to provisions that close polling places, escalate voter ID requirements, and dismantle vote-by-mail (which had revolutionary effects for mobilizing Native American voters in reservations) and absentee voting as examples of changes Republicans are passing that would disproportionately affect communities of color. Aaron Scherb, director of legislative affairs at Common Cause, pointed out that these laws differ by state, but he mentioned limits on early voting, specifically the mass purging of voter rolls and restrictions on weekend voting that in Georgia initially targeted Sunday voting to scuttle “souls to the polls” voter mobilizations by Black churches. “These [laws] are largely targeted at black and brown voters to make it harder for them to have their voices heard,” Scherb said.
Other provisions include bans on giving food or water bottles to people waiting in line at polling places (aimed at large communities of color where lines are long due to polling place closures), empowering partisan poll watchers to closely observe election workers (where they could potentially be disruptive or even intimidate people), and even procedures allowing partisan legislatures to take control of election administration. Professor Mark Rom of Georgetown University expressed fears over that last point, saying that Republicans are changing who supervises elections, who determines a ballot’s legality, and who has authority to certify election results. “Those typically have been fairly non-partisan jobs and Republicans are putting them in the hands of Republican politicians,” he said. “That’s where I think a lot of the real threat to democracy is, putting partisans in the position to determine the outcome of elections without checks.”
As Republicans continue to pass laws that disenfranchise people of color and undermine the democratic process, congressional Democrats have attempted to reverse those laws and expand voter access at the federal level. Introduced in 2019 and passed by the House in its current form in August, the John Lewis Voting Rights Act would restore and strengthen the preclearance requirement of the 1965 Voting Rights Act by introducing a modernized formula to determine which regions are covered by it, making more election practices subject to it, and allowing the Attorney General to send federal observers more easily to determine the effects of voting practices.
Another bill Democrats are hoping to pass is the Freedom to Vote Act. Passed by the House earlier this year as the For the People Act, it took on its new moniker after being rewritten to gain the support of Sen. Joe Manchin (D-W.Va.). The bill focuses on expanding voting access in a myriad of ways as well as streamlining how federal elections are conducted and how campaigns are financed. Specific provisions include allowing no-excuse by-mail voting with more ways to return ballots, making Election Day a legal holiday, flexible identification standards in states with I.D. requirements, restoring voting rights after incarceration, preventing long lines, automatic same-day voter registration, careful supervision over voter roll purges, banning partisan gerrymandering, and bolstering transparency rules for large political donations. All of these changes would combat voter suppression practices that disenfranchise people of color and dilute their representation.
However, neither of these pieces of legislation have come anywhere close to the 60 votes required to overcome a filibuster. Even though a majority of the Senate supports both the John Lewis Voting Rights Act and the Freedom to Vote Act, united Republican opposition (with the exception of Alaska Senator Lisa Murkowski, who favors the John Lewis Voting Rights Act) has prevented these bills from even being debated. State-level Republicans have enacted laws that target racial minorities and slant elections in their favor, and Senate Republicans’ use of the filibuster (as well as a conservative Supreme Count) is rendering any effort to combat them dead on arrival.
So what is the filibuster, and how are Republicans taking advantage of it to grind voting rights legislation to a halt, even as it has majority support in both chambers of Congress? It arises from the Senate’s own rules on how it considers legislation. Rom explains, “For any bill that’s being proposed, there has to be agreement on, will we actually debate it or will we not debate it… You have to have a lot of the Senate agree to debate.” As the rules stand, before a bill can receive a direct vote (which usually requires only a simple majority of senators to pass) it must first be brought to the floor for debate. Either all 100 senators agree to debate the bill, or it can be stalled by senators refusing to allow debate. This obstructive stalling tactic is called a filibuster. In order to bypass a filibuster, the senators in favor of moving forward must hold a vote to conclude current business. This is called invoking cloture, and to win a cloture vote, 60 senators are required. This means that if the minority party holds at least 41 seats, they can kill any bill by maintaining a filibuster indefinitely. If the bill moves to debate, opponents get a second opportunity to filibuster it. While, again, all 100 senators can agree to end debate and move forward with a vote on passage, if this doesn’t occur and there aren’t 60 senators in favor of invoking cloture, it can stay in the debating stage indefinitely and never receive a vote.
Historically, the filibuster has taken different forms. It was conceived from an accidental rule change in 1806 that allowed debate to continue without end and remained obscure and rarely used for much of its history. However, that began to change in the Civil Rights Era, when Southern segregationist senators used it to stall any progress on civil rights legislation. “Old school filibusters, the senator would go on the floor of the senate and actually speak, and as long as they were speaking… they didn’t have to give the floor up,” Rom said. The longest of these was Sen. Strom Thurmond’s (D-S.C.) filibuster of the 1957 Civil Rights Act and lasted just over 24 hours. The filibuster’s history as an institution defending Jim Crow is one that many are looking back on as it continues to be an obstacle to civil rights.
Now, filibusters have become far more common. Rom said, “It’s now used routinely. Senator McConnell uses it routinely to slow debate down or kill consideration of bills… It has now become a way of obstructing the Senate from moving forward on any kind of routine business.” Modern filibusters typically do not require anyone to actually hold the floor either, as the threat of doing so is enough to ensure the chamber moves on to other business rather than wasting time on a failed cloture vote.
Senate Minority Leader Mitch McConnell (R-Ky.) has not made much use of the talking filibuster, preferring to keep bills from reaching the debate phase altogether. In the case of the John Lewis Voting Rights Act and the Freedom to Vote Act, Republicans blocked the possibility of even debating them by filibustering the procedural votes to take them up at all. This not only means that legislation defending communities of color against voter suppression cannot pass, but that their elected officials lack any forum whatsoever in the United States Senate to advocate for civil rights.
Because of the filibuster, it is doubtful that federal voting rights legislation can pass in the Senate. It certainly cannot pass without rule changes circumventing the filibuster that some Democratic senators have expressed opposition to. And with the 2022 midterm elections approaching and Democrats’ electoral prospects looking increasingly dire, they are running out of time. As Republican politicians continue to disenfranchise people of color Congress continues to fail as the only plausible path for voting rights, the question lingers: Will the filibuster be the end of multiracial democracy in America?
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