Congress Must Enact New Voting Rights Laws And Safeguard The Fundamental Right To Vote From A Reactionary SCOTUS

Paul Blumenthal writes at the Huffington Post, Democrats’ Top Priority Is To Reform Elections. Will It Be The Bill To Break The Filibuster?

Congressional Democrats are pushing a sweeping package of voting rights, gerrymandering, election, campaign finance and ethics reforms, called the For the People Act. It’s listed as H.R. 1 in the House and S. 1 in the Senate, signifying that it is Democrats’ top legislative priority. For the past two decades, every bill labeled both H.R. 1 and S. 1 has become law.

There is also the John Lewis Voting Rights Advancement Act, to restore the Voting Rights Act of 1965, as amended, which was neutered by Chief Justice John Roberts in Shelby County v. Holder (2013). The House passed this bill in 2020 but it died in the “Grim Reaper” Mitch McConnell’s legislative graveyard in the Senate. The bill has not yet been reintroduced with a bill number in the current 117th Congress. Better get on it, now!

If the For the People Act is to pass, though, Democrats will need to surmount the one obstacle clogging up almost all legislation that doesn’t directly affect the federal budget: the filibuster. Democrats hold only 50 votes ― plus Vice President Kamala Harris’ to break ties ― and Republicans could easily use the filibuster to prevent voting reform. McConnell, who previously called the legislation “socialism” and a “power grab,” blocked it from a Senate vote in 2019. [As always, Mitch is full of shit.]

Debate over the filibuster ― that it is an archaic tool used mostly throughout history to block civil rights laws and is now preventing the government from operating as voters want it to ― is already at a boiling point. If the filibuster winds up killing democracy reform, it may be what finally drives Democrats to turn around and kill the filibuster.

Former President Barack Obama, Democratic lawmakers and activists are already paving the way to make that argument. At the funeral for civil rights hero and Democratic Rep. John Lewis last summer, Obama called the filibuster a “Jim Crow relic” and said that if Republicans dared to filibuster legislation to reauthorize the Voting Rights Act (a bill that is now named for Lewis), Democrats should not hesitate to eliminate the filibuster to pass the bill.

The same could be argued of the For the People Act: Lewis and his staff wrote the entire first section, which greatly expands voting rights and limits voter suppression tactics.

These reforms are all the more vital now, Democrats argue, as Republicans seek to pass new voter restrictions at the state level, spurred on by former President Donald Trump’s voter fraud lies. If Democrats don’t pull off these reforms now, they could be too late.

I would add that passage of the John Lewis Voting Rights Advancement Act is critically important right now to restore Section 5 preclearance by the Department of Justice ahead of redistricting by the states this year.

They intend that the For the People Act become law. Whatever it takes.

“It’s all systems go to try to make that happen,” said Rep. John Sarbanes (D-Md.), the bill’s chief sponsor in the House.

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[Democrats are] trying to figure out how they’re going to enact their agenda. Just as when Obama came into office in 2009, the main obstacle is McConnell’s use of the filibuster to block any and all legislation that he can.

[T]he anti-filibuster coalition Fix Our Senate launched in 2019 with backing from some groups involved in the 2010 effort, including the Communications Workers of America, Common Cause and Public Citizen, as well as many new progressive and issue-oriented partners like Sunrise Movement and Data for Progress.

Fix Our Senate and the Declaration for American Democracy, a coalition of good government and progressive groups whose membership overlaps with that of Fix Our Senate, are now pressuring Senate Majority Leader Chuck Schumer (D-N.Y.) and other key Democrats to pass the For the People Act no matter what.

Fix Our Senate has already run a full-page ad in The New York Times calling on Schumer to end the filibuster. More ads are planned in states represented by Democratic senators who are not currently on board with ending the filibuster, like Sens. Joe Manchin (W.Va.) and Kyrsten Sinema (Ariz.).

Do they really want to step into the shoes of Southern Dixiecrat segregationists who used the filibuster to thwart civil rights and voting rights legislation during the Jim Crow era? History will condemn them harshly.

The Declaration for American Democracy intends to target its messaging in seven states: Alaska, Arizona, Georgia, Maine, Pennsylvania, Virginia and West Virginia. These states fall into four different but sometimes overlapping categories. There are the states with Democratic senators who are currently opposed to ending the filibuster (Arizona and West Virginia), states with potentially swayable Republican senators (Alaska and Maine), states whose election systems were attacked by Trump as part of his campaign to overturn the election (Arizona, Georgia and Pennsylvania), and states with moderate House Democrats who backed the For the People Act (Arizona, Georgia, Maine, Pennsylvania and Virginia).

The For the People Act “is shaping up to be a big flashpoint in the fight to eliminate the filibuster because it is both critically important and also absolutely clear that it will be filibustered,” said Eli Zupnick, spokesman for Fix Our Senate. He added, “If Democrats go two years without taking any steps to fix our democracy and tackle corruption and protect voting rights, this will be a failure. This will be a failure of two years.”

The fight in Congress over the For the People Act will begin in earnest in the coming weeks. The House plans to pass the legislation the week of March 1. After that, the Senate will hold hearings on the bill and likely bring it to the floor for a vote.

And that is where the bill is expected to be blocked by a Republican filibuster and become a flashpoint in the fight to change Senate rules.

The Democrats’ Plan For Passage

Sen. Jeff Merkley (D-Ore.) is the lead co-sponsor of the For the People Act in the Senate, alongside Sen. Amy Klobuchar (D-Minn.), and also the leading proponent of eliminating the filibuster. He is insistent that the bill become law. To do so, it must either gain support from 10 Republican senators, an unlikely feat, or overcome the opposition to eliminating the filibuster expressed by Manchin and Sinema.

“It has to pass in some way,” Merkley said, “but it could pass in multiple ways.”

One way to try to gain Republican support, Merkley suggested, is to put the bill on the Senate floor open to all germane amendments. Most bills hit the floor with a rule drafted by the majority party limiting amendments and debate. Showing openness to the other party’s amendments and debate is rare these days and might earn buy-in from the other side.

If that doesn’t work, then Merkley thinks Democrats need to immediately examine any and all ways to change the filibuster rule. This could include lowering the threshold for overcoming the filibuster from 60 to 55 votes, eliminating the 60-vote threshold but providing for a talking filibuster, or entirely ending the filibuster.

A majority party changing the rules to pass its top-priority legislation wouldn’t be out of the ordinary, Merkley noted. In fact, Republicans altered the rules for budget reconciliation in 2015 after winning control of the Senate. This change allowed them to pass their own H.R. 1 and S. 1 in 2017, a package of tax reforms and upper-income and corporate tax cuts.

Failure to pass the For the People Act wouldn’t just mean that Democrats failed to enact the centerpiece of their agenda; it would also clear the way for a new wave of state voter suppression measures driven by Trump’s election fraud lies.

Right now, Republican-controlled state legislatures are pushing bills to limit early and absentee voting, purge voters from the rolls, and toughen voter ID requirements. The For the People Act would ban almost all of these schemes to make it harder for certain communities to vote.

“Here we are with a very, very slim majority, a majority that we’ll probably lose if voter suppression goes on steroids as seems to be the path that so many state legislatures are on right now,” Merkley said. “And so this is the critical moment to pass this bill.”

Furthermore, the bill would ban partisan gerrymandering by requiring states to use independent, nonpartisan redistricting panels to draw House district lines. Given the extent of current Republican control of state legislatures, which exists thanks to district lines gerrymandered back in 2011, the Democratic House majority could theoretically be gerrymandered out of existence ahead of the 2022 midterm elections. Passing the For the People Act quickly could potentially prevent this as well as blocking new voter suppression laws.

[T]he For the People Act may be the first bill to be blocked in this Congress, but as long as there’s a filibuster, it won’t be the last.

House Democrats expect to pass the John Lewis Voting Rights Advancement Act this spring as well. If Republicans block that, too, they’ll be sending a clear symbolic message: that the GOP, fresh off trying to overturn an election by disenfranchising Black voters, is ready to stomp on Lewis’ legacy.

Democrats will have to decide whether to let Republicans block these bills, which will allow further disenfranchisement of Black voters, or to pass the legislation they ran on.

I would argue, as I have before, that the John Lewis Voting Rights Advancement Act must contain a provision stripping Article III courts of jurisdiction to review the statute. As Christopher Sprigman explains, A Constitutional Weapon for Biden to Vanquish Trump’s Army of Judges (excerpt):

[A]s it happens, [there’s] a deeper reform that the Constitution specifically authorizes. Article III of the Constitution gives Congress substantial power to strip federal courts’ jurisdiction: a power that can be employed to rein in politicized courts and even to override judicial decisions, at least when courts are standing in the way of change that a substantial and enduring political coalition wants.

How would jurisdiction-stripping work? Start with the source of Congress’s authority. Article III, section 1 gives Congress complete discretion on whether to create the lower federal courts, a power that Congress has used from the founding to limit lower courts’ jurisdiction. And Article III, section 2, clause 2 explicitly empowers Congress to make “exceptions” to the Supreme Court’s appellate jurisdiction—that is, to pick and choose for approximately 99% of the Supreme Court’s total docket what cases the Court has the power to hear. As I explain in this article, to be published in December in the New York University Law Review, under its Article III authority, Congress can remove the Supreme Court’s appellate jurisdiction over particular cases, or particular issues, largely without constraint. 

Congress also has the power to limit the jurisdiction of state courts to hear federal questions, including constitutional claims. But on a practical level, it would not matter much even if state courts still hear federal constitutional claims. State courts lack both the authority to enjoin federal officials and the practical institutional power to counter a determined federal government. 

The implications of Congress’s Article III power are potentially profound. Congress’s power over courts’ jurisdiction means that it can claim for itself authority to interpret the Constitution in particular cases.

Chief Justice John Roberts, who has spent his entire professional legal career seeking ways to undermine the Voting Rights Act of 1965, would be defanged, powerless to inflict any more damage on voting rights. Congress must safeguard the fundamental constitutional right to vote from right-wing reactionary judge’s attempts to preserve a tyranny of white Republican minority rule in an increasingly diverse America.

Ian Milhiser explains why this legislation is so critically important, right now. The Supreme Court is about to hear two cases that could destroy what remains of the Voting Rights Act:

Next Tuesday, the Supreme Court will hear two cases that could shred much of what remains of the right to be free from racial discrimination at the polls. The defendants’ arguments in two consolidated cases, Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee, are some of the most aggressive attacks on the right to vote to reach the Supreme Court in the post-Jim Crow era.

These two DNC cases concern two Arizona laws that make it more difficult to vote. The first requires voting officials to discard in their entirety ballots cast in the wrong precinct, rather than just not counting votes for local candidates who the voter should not have been able to vote for. The second prohibits many forms of “ballot collection,” where a voter gives their absentee ballot to someone else and that person delivers that ballot to the election office.

The most important question in the DNC cases isn’t whether these two particular Arizona laws will be upheld or stuck down, but whether the Court will announce a legal rule that guts one of America’s most important civil rights laws. And there is reason to fear that it will. The Supreme Court doesn’t just have a 6-3 Republican majority; it’s a majority that includes several justices who’ve shown a great deal of hostility toward voting rights generally and the Voting Rights Act in particular.

The Voting Rights Act is the landmark law that President Lyndon Johnson signed to end white supremacist election laws in 1965, and that President Ronald Reagan signed legislation expanding in 1982.

Reagan did so over the strident opposition of a young Justice Department lawyer named John Roberts. Roberts wrote more than two dozens memos opposing the 1982 voting rights law, one of which claimed it was “not only constitutionally suspect, but also contrary to the most fundamental tenants [sic] of the legislative process on which the laws of this country are based.”

Four decades later, Roberts isn’t simply the Chief Justice of the United States, he is the most moderate member of a six justice conservative majority — and his Court has already taken two significant bites out of the Voting Rights Act.

The Biden administration filed a letter with the Supreme Court on February 16, which suggests that the two Arizona laws in question do not violate a key prong of the Voting Rights Act. So there are reasonable arguments that the Court should allow the two state laws to stand. But again, the most important question in these cases isn’t what happens to the Arizona laws. It’s whether the Supreme Court waters down what remains of the Voting Rights Act to such an extent that it becomes virtually worthless.

Race discrimination by election officials and by election lawmakers won’t necessarily become legal, but plaintiffs seeking to enforce the federal ban on such discrimination could face such daunting hurdles that they’ll have little chance of prevailing in any important lawsuit.

In the DNC cases, the Supreme Court could turn its back on the commitment to pluralistic democracy that President Johnson signed into law more than half a century ago, and usher in a new era where states are free to discriminate against voters of color — voters, it’s worth noting, who tend to favor Democrats over Republicans — so long as those states make the most minimal efforts to make discrimination appear racially neutral.

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The DNC cases primarily involve the third arm of the Voting Rights Act: Section 2’s results test. And, like Shelby County and Perez before them, the DNC cases are unlikely to produce a majority opinion striking down the results test in its entirety (although such an outcome is possible). But the parties seeking to limit the results test, which include Arizona’s Republican attorney general and the Arizona Republican Sedition Party, propose such rigid limits on that test that they would render it virtually useless.

The case is all the more complicated because the Court’s existing cases applying the results test are, to say the least, unwieldy, and could benefit from simplification. But the current Supreme Court is less likely to streamline the results test than to nuke it from orbit. And, after the Court’s decisions in Shelby County and Perez, that means that the Voting Rights Act could become a brittle shell of its former self.

Ian Milhiser then gives a long, lawyerly explanation of “how the DNC cases could gut the results test.” Read his analysis for the nuts and bolts of the legal arguments.

Milhiser concludes:

In a world without an effective Voting Rights Act, laws like this will thrive and metastasize. Republican lawmakers will grow increasingly skilled at drafting laws that target Democrats of color. And the Supreme Court, if it embraces the arguments advanced by Brnovich or the Arizona Republican Party, will do little more than shrug at these laws.

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[T]he current Supreme Court appears less interested in doing this difficult-but-important work than it is in shrinking the Voting Rights Act to oblivion. The right to vote may be in greater peril today than at any point in decades, and court battles like Shelby County, Perez, and the DNC cases are why.

Congress must enact the For The People Act and the John Lewis Voting Rights Advancement Act ASAP, and include a provision stripping Article III courts of jurisdiction to review the statute to safeguard the fundamental constitutional right to vote from right-wing reactionary judge’s attempts to preserve a tyranny of white Republican minority rule in an increasingly diverse America.

Contact your senators and member of Congress in support of these bills, and the elimination of the filibuster rule if that is what it takes to get this done.