Democrats are stuck in a vicious cycle on voting rights: They’re struggling to pass legislation to expand them, so they depend on the attorney general to safeguard protections. But the Justice Department’s legal efforts are often complicated and protracted. To streamline them, federal prosecutors need more tools from Congress and in the meantime, meaningful reforms remain elusive.
Now, despite the recurring defeats, Senate Democrats plan to refocus their energy on sidelined priorities like voter protections in early 2022 as they also work to revive President Joe Biden’s economic agenda.
As a pair of voting rights bills remain in congressional limbo, the Biden Department of Justice under Attorney General Merrick Garland is filing new lawsuits to overturn what they argue are restrictive laws enacted by GOP-led states and gerrymandered districts. The latest lawsuit from earlier this month takes aim at Texas’ new redistricting plan.
But neither approach is certain and each in part depends on the other. DOJ’s efforts are more limited without congressional approval of more oversight tools.
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“The Department of Justice and Merrick Garland are right in the sense that they are doing their part of challenging what the states are putting forward,” says Stephany Spaulding, a spokesperson for Just Democracy, a coalition of racial and social justice groups. “But Congress has to step in federally and pass voter legislation that protects access to the ballot. What we’re witnessing is piecemeal solutions to the work not getting done in Congress.”
Garland’s Justice Department has made the issue its mission under Biden. The attorney general has vowed to “rededicate” resources for voting protections and has filed several lawsuits against states seen to be curbing protections, alleging violations of the landmark 1965 Voting Rights Act – a marked difference from how the agency approached voting and elections in the Trump era.
Politically, Republicans in general are thought to be more resistant to expanding voting rights because the conventional wisdom says they benefit from lower turnout at the polls while Democrats draw significant support from minorities and have a vested interest in ensuring that those who are more likely to be obstructed or intimidated away from voting have easier access. It’s not always the case. In the recent Virginia gubernatorial election, Republicans swept a blue state with high voter turnout.
But more true to form, voters of color – especially Black women – helped Democrats carry critical swing states last year, which ultimately resulted in the party narrowly winning both the White House and control of the Senate. The new laws implemented by GOP-led states in the wake of the 2020 elections raise fears for voting rights activists that the restrictions will disportionately hurt minority communities’ voting powers and create greater burdens for them at the ballot box.
Without Republican support, Democrats’ best shot at getting legislation through the upper chamber is to lower the threshold to overcome filibusters from 60 to 51 votes – a tactic that requires a rules change. No small feat in itself, their biggest obstacle to making the change may be presented by their own members who don’t support such a move, dimming the prospects for passage.
Senate Majority Leader Chuck Schumer of New York is vowing that Democrats will press forward on voting rights early next year, even if they have to change the rules on their own. If all 50 Democrats can get behind a substantive rules change – support they currently don’t have – they significantly raise their chances of pushing through voting reforms.
That remains the biggest open question for the party and one they discussed as a caucus during a virtual meeting on Tuesday night. On it, Schumer said the Senate will vote on a rules change regarding the filibuster if Republicans still block voting rights legislation in January.
And in a Wednesday night interview with ABC News, Biden went further than he has before, definitively saying he supports making an “exception” to nix the 60 votes to break a filibuster for voting rights.
“The Senate will consider voting rights legislation as early as the first week back,” Schumer wrote to his caucus in a Monday letter. “If Senate Republicans continue to abuse the filibuster and prevent the body from considering this bill, the Senate will then consider changes to any rules which prevent us from debating and reaching final conclusion on important legislation.”
For their part, Republicans are vehemently opposed to making any changes to elections at the national level, though many have previously voted for past reauthorizations of the Voting Rights Act. They characterize the bills now before the Senate as federal overreach, claiming Democrats want to weaken state voter ID laws that require those wanting to cast a ballot to show identification. And they bemoan Democratic efforts trying to unilaterally revamp the rules.
“We have discussed over and over again why Democrats will not be allowed to federalize elections and lord over all 50 states like a self-appointed board of elections on steroids. It’s not about ‘voting rights.’ It’s a naked power grab,” Senate GOP Leader Mitch McConnell of Kentucky said last week. “Some Democrats want to break the Senate and trash its rules to force these sorts of things on all 50 states.”
A major factor prompting Democrats’ need for action is that in the past, new rules and voting maps from jurisidictions and states with a history of discrimination were subject to DOJ scrutiny before they could become law, a process known as “preclearance” under Section 5 of the Voting Rights Act. But after the Supreme Court defanged that clause almost a decade ago, new voting practices can easily go into effect without review.
As a result, the number of lawsuits from DOJ, voter protection groups and other private plaintiffs reacting to changing laws after they are passed is rapidly growing. The Justice Department filed its latest lawsuit earlier this month against Texas over its redistricting plan, alleging that new districts drawn and approved by the GOP-controlled legislature discriminate against Black and Latino voters. The agency previously sued Texas as well as Georgia over parts of their new voter laws and filed statements of interest in litigation challenging laws in Florida and Arizona.
During his recent announcement of the Texas lawsuit, Garland himself acknowledged that the agency likely wouldn’t have filed a lawsuit against the state’s redistricting plan if preclearance were still intact.
“I want to again urge Congress to restore the Justice Deparmtens’ preclearance authority,” Garland said when he announced the latest Texas voting-related lawsuit. “Were that preclearance still in place, we would likely not be here today announcing this complaint.”
The Texas case is just one of a number of tough court battles the DOJ and other plaintiffs face, and some of them might not get resolved before the next elections in 2022.
Paul Smith, a senior vice president of litigation and strategy at the Campaign Legal Center, believes redistricting cases are likely to go through the courts faster because candidates need to know where they’re running, though lawsuits could delay some primaries. They could also allow the new maps to go into effect for the current cycle and revisit redrawing lines later, which has happened in past redistricting challenges. When it comes to litigation surrounding voter laws, Smith says it could go more slowly because “they don’t have the same urgency.”
“Litigation of this kind going through the full litigation process is a much less workable solution than preclearance used to be,” adds Smith, who has argued in a number of voting rights and redistricting cases heard before the Supreme Court.
Restoring the pre-approval process from the Voting Rights Act is part of the Democratic wish list of legislative reforms, and their vehicle for it is a bill named after the late civil rights icon Rep. John Lewis of Georgia. Sen. Lisa Murkowski of Alaska was the only Republican to support it when it came to the Senate for a procedural vote in November.
Separately, the party has proposed a sweeping elections bill, the Freedom to Vote Act, to enact measures to bolster voter registration, expand mail-in voting and bar partisan gerrymandering – something both parties are accused of doing. All Republicans are opposed to this legislation.
But with a 50-50 Senate, they can’t pass either since they won’t get the 10 Republicans needed to clear the 60-vote threshold and overcome a filibuster. Democrats are gauging whether the entire party can get behind a carveout of the filibuster rule specifically for voting rights – like they have for economic issues including raising the debt ceiling. All 50 Democratic senators must be on board. And currently that’s not the case.
Two moderate Democrats who have held out against party priorities before – Sen. Joe Manchin of West Virginia and Sen. Kyrsten Sinema of Arizona – are opposed to rule changes that’d lower the 60-vote requirement, despite supporting the underlying legislation.
Manchin was instrumental in reworking a sweeping voting bill that is now the Freedom to Vote Act. But the two senators ultimately want to preserve the filibuster and would rather do a rules change with GOP buy-in.
A group of senators, including Manchin, have been meeting to see if they can find a rules change that would be acceptable to all Democrats. Last Thursday, Biden and Vice President Kamala Harris, who is tasked as the administration’s point person on voting rights, spoke with nine Democratic senators on a video call to discuss the path forward.
But activists are growing anxious about the Senate’s ability – or lack thereof – to quickly take up voting rights again. They’re sounding the alarm on the need for action well before next year’s elections when control of both the House and Senate will be at stake. And they fear restrictive voting measures will disproportionately hurt voters of color and other disenfranchised communities like disabled and elderly voters in the midterms.
Spaulding, of Just Democracy, highlights organizers’ frustration that the Senate is willing to waive the rules of a filibuster in certain circumstances but not for issues that are fundamental to democracy – a sentiment also espoused by Democratic Sen. Raphael Warnock of Georgia, who is helping to lead the charge on the renewed voting rights push.
Both parties have used the budget reconciliation process that permits a simple majority of 51 votes to circumvent filibusters. Democrats are trying to use it to pass the embattled Build Back Better Act. And the parties have each used the nuclear option to confirm both judicial and Supreme Court nominees with the same 51-vote threshold. Voting rights groups believe their issue should be afforded a similar exception to push it across the finish line.
“That impact of not getting things done is present and then there are going to be people who need to go out of their way to find their precincts, go out of their way to get a ballot and make sure that their ballot is counted,” Spaulding says. “All of these things are on the table if we don’t get this done by January.”
The consequences of not getting it done are already on display. In two of its lawsuits, the DOJ is relying on Section 2 of the Voting Rights Act, which prohibits any voting practice from discriminating against voters based on race. But a 2019 Supreme Court decision weakened that provision after the justices ruled two Arizona voting laws were not racially discriminatory.
In the recent Texas lawsuit from early December, Garland is alleging that the Lone Star State violated the law in the redistricting process by diluting the rights of Black and Latino voters. And in June, he sued Georgia for changes to mail-in voting and restrictions on passing out food and water to voters waiting in line – rules the DOJ argued specifically targets Black voters.
Legal experts argue, however, that fighting back on those grounds alone may not be enough.
“The main thing I would say is that Section 2 of the Voting Rights Act is not a good enough tool to police this system and all the abuses out there,” Smith says. “We need new tools and that’s got to come from Congress.”
