Protecting American’s right to vote is shaping up to be the central civil rights battle of the Biden presidency, and the massive effort to suppress that right needs to be addressed head on, now.
Three months into 2021, some 253 pieces of legislation and counting have already been introduced by Republicans at the state government level aimed at stifling voter participation and doing so in a way that is largely aimed at diminishing potentially Democratic votes from minority communities. Some have called it the biggest assault on voting rights since the Jim Crow era.
Changing the voting process to favor your party’s ability to win elections and gain or retain power is not a new story in American democracy or democracies throughout history. The Democratic Party did this with voter suppression laws after the Civil War. It is in fact probably the single unifying theme of most Republican Party efforts playing out through Republican controlled state legislatures, as well as Republican appointed and elected judges at both the federal and state levels. One need look no further than the results of the 2020 presidential election to see how much each individual vote truly matters. The presidency was decided by 44,000 votes across three states out of over 150 million votes cast, or less than three one hundredths of one percent of the total.
To use a sports analogy, what if the losing team in this year’s Super Bowl had spent all their time trying to get the NFL to change the rules for next year’s contest to ensure they could win next time instead of training hard to make themselves more competitive? That is what these state legislative efforts represent. When either of our political parties decide they cannot win elections unless the rules are skewed in their favor, the future of our democracy is in peril.
The centrality of this issue for determining who holds political power in the United States was demonstrated last year in Georgia, where a massive voter registration and voting effort spearheaded by Stacey Abrams was responsible for successfully winning the state for Joe Biden, and then two Democratic senators—all by extremely thin margins—and in so doing flipping Senate control to the Democrats.
The Democratic response to the Republican voter suppression efforts has been a bill, H.R. 1, with a companion bill introduced in the Senate, called the For The People Act. This legislation includes a number of voting rights protections along with other provisions that would substantially improve the state of our democracy—from addressing egregious gerrymandering, regulating dark money campaign contributions, ethics rules related to judges and government officials and requirements that presidential candidates release tax returns. According to the Brennan Center for Justice at NYU, this legislation would totally thwart the impact of nearly all 253 Republican voter suppression bills.
Getting this critically important piece of legislation through the Senate, where the Democrats, with Vice President Kamala Harris voting, only have a 51-50 majority, requires changes to the Senate’s current rules. The essential issue this poses is that under those rules legislation of this kind requires 60 votes—meaning at least 10 Republican senators must agree to vote for cloture and therefore cutoff debate, to end what would clearly be a Republican filibuster of this bill.
Given the partisan stakes, that is not going to happen. Therefore, the only hope of passing this legislation to counter the Republican onslaught to undermine voter participation—a thrust especially active in key swing states which will decide the makeup of the U.S. Senate in 2022 and the presidency in 2024—is to change the filibuster cloture rule so that a 51-vote majority is enough to pass this legislation.
How to do this? As a number of commentators have noted, the voting rights bill has to be narrowed to gain the support of all Democrats, most notably Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, both of whom have indicated they are not in favor of abolishing the filibuster overall. Manchin has indicated he is willing to consider some change to the rules governing filibuster. The question becomes how to do that so it is politically palatable to him and his colleague from Arizona? Both of these two senators have their own political reasons to support legislation that will enhance and protect voter participation, since as Democrats, their reelection in their own states may well depend on defeating these Republican voter suppressing efforts.
The Republican bills filed at the state level to make voting harder are clearly aimed at Black voters and other constituencies that lean toward the Democrats. They include outlawing early voting on Sundays to prevent “souls to the polls” voter drives—a key voter initiative of many Black churches and such petty and cynical provisions as making it illegal to provide snacks and water to people standing in long lines in the sun while they vote, which has often become an issue with inner-city voters.
Overcoming a filibuster to put in place the Voting Rights Act of 1965, the landmark civil rights protection of that era, was possibly Lyndon B. Johnson’s greatest achievement as president. He was able to cajole enough Republicans to prevent a filibuster by southern segregationist Democrats. As Doris Kearns Goodwin, the great historian of presidential leadership noted, Johnson told Senate Republican Minority Leader Everett Dirksen that if he delivered the Republican votes to break the filibuster and assure passage of the Voting Rights Act, his name would be up there with Abraham Lincoln’s as the only two that all school children would know 200 years hence when it came to civil rights. Is there another Dirksen today that we can put up there as part of the great civil rights arc of history? There may be a few Republicans—but very doubtful there are 10.
Senate Minority Leader Mitch McConnell expressly threatened that repealing the Senate’s current filibuster rules will cause Republicans to bring all Senate work to a screeching halt and doom any chance for any other Biden administration initiatives ever passing. On the other hand, President Biden said he does not want to repeal the Senate filibuster, but instead make it harder for the minority to use it.
In order to keep all 50 Democrats together—meaning having the potential to bring Manchin and Sinema along—Democratic leaders will need to narrow the scope of the bill to cover only voting rights and defer addressing related issues like countering gerrymandering and dark money in campaigns. Protecting the civil rights of minority voters that much of these Republican bills are aimed at undermining needs to be the overwhelming priority.
Second, abolishing the filibuster rule in its entirety will simply not fly. A filibuster exemption needs to be created that is so narrow such that it only applies to this legislation, without creating the argument that a major precedent has been established. Rather than seeking a broad change to the filibuster cloture rule that could be used to suggest any and all legislation could pass the Senate with simple majority support—something which is now limited to approval of cabinet secretaries, federal judges and Supreme Court justices, the Senate’s leadership needs to find a smaller, narrower path—namely, to create an exception to the filibuster for the specific purpose of countering the Big Lie.
There is one overwhelming rationale that provides this small, narrow path for an exception to filibuster cloture. That rationale is the Big Lie—the great untruth that there was substantial voter fraud that resulted in Trump losing the election, thereby enabling the election to be stolen out from under him. This is, of course, patently and demonstrably not true—as 60 courts, consisting of both Democratic and Republican judges, seeking evidence on this issue ruled there was none. Yet, not only did Trump incessantly drive this narrative, but he continues to do so. It is what incited the Capitol Hill rioters to attack Congress during its final certification of the Electoral College results. It was the basis for the vast majority of Republicans in the House and the Senate voting against the certification of Joe Biden’s Electoral College victory. And, currently, it is the false premise upon which Republicans are pursuing their 253 voter suppression bills.
The Big Lie and its consequences have not been answered by Congress in any way. Yes, there are hearings and investigations about the Capitol riots—but the Big Lie continues to be spread by some Republican politicians and some social and right-wing media, while prosecutors are going after individual Capitol Hill insurrectionists. There must be a showing of real pushback with strength by all defenders of our democracy against this total falsehood. There is nothing more deserving of an exception to the filibuster rule than putting in place federal policy to overcome the malevolent intent of the Big Lie. There must be a showing of real pushback with strength against the Republican Party apparatus—including most Republican senators and congressmen—who are still adhering to and purveying this total falsehood.
As important as doing this is, it must be emphasized, it is a very narrow basis for a filibuster rule exemption. This would not be amending the filibuster rule to drive a legislative resolution to a legitimate policy debate where the two parties view an issue differently—such as immigration reform, gun law reform, infrastructure spending, or abortion. This is a one-time use of the filibuster to show there is a consequence to attempting to overturn our commitment to free and fair elections based on election narrative falsehoods.
Framed this way, as a measure to vindicate the right to vote, there may be even a chance of picking up some of the 10 Senate Republicans who did vote to certify Biden’s Electoral College victory. Framed this way, maybe many of the corporations that were quick to support the civil rights implications of the Black Lives Matter movement, and to announce policies of never supporting elected officials who embraced the Big Lie with campaign contributions, would put some real shoulder behind passing this part of H.R. 1.
However, there is one element that is critical to the protection of voting rights that is not currently in H.R. 1 that is a fundamental protection that must be part of that package. As former Senator Tim Wirth and Tom Rogers predicted in Newsweek nine months ago, President Trump attempted an end run around the Electoral College through the misuse of the state legislative and congressional roles in certifying Electoral College electors in order to defeat the will of the nation’s voters. If it had succeeded it would have been the greatest defeat for the rights of voters in the nation’s history. This was the Big Tactic that was to bring the Big Lie into reality.
That Electoral College certification process is set forth in a 130-year-old statue called the Electoral Count Act, which is in need of amending in order to prevent any such end run around the Electoral College again. Those reforms, as developed by Jonathan Winer of Keep our Republic, an organization to which we belong, involve making sure that only Electoral College electors can be appointed who support the election of the candidate who won the state’s popular vote, so that state legislatures cannot decide to certify alternative slates of electors of their choosing. In addition, the act must be amended to require that state laws regarding selection of electors must be set no later than 60 days prior to Election Day to avoid last minute or post-election manipulations. These changes will go a long way to assure that state legislatures are significantly circumscribed from pursuing any effort to make their own decision as to what Electoral College slate is sent to Congress, as President Trump pressured states to do. These necessary reforms would limit any congressional effort to subvert a legitimate Electoral College vote by totally negating the will of a state’s voters.
The Biden administration will have obvious concerns that this Big Lie filibuster exemption not derail the potential for bipartisan efforts on other key priorities such as an infrastructure bill. Yet, all should remember McConnell himself took to the floor excoriating President Trump for inciting the Capitol Hill mob by relentlessly putting forward the Big Lie. Even he must recognize there has to be some consequence for the Big Lie continuing to be utilized as a basis for anti-democratic state voter suppression efforts. Nevertheless, this will be a real tight rope for the Biden administration. The sequencing of when H.R. 1 is pushed through under the Big Lie exception needs to be choreographed well, and messaged in the above manner exquisitely so. But make no mistake—this dance to ensure voter rights protection must happen.
Dick Gephardt was the U.S. House majority leader from 1989–1994 and minority leader from 1994-2002.
Timothy E. Wirth is a former U.S. senator from Colorado.
Tom Rogers is an editor-at-large for Newsweek, the founder of CNBC and a CNBC contributor. He also established MSNBC, is the former CEO of TiVo, currently executive chair of Engine Media and is former senior counsel to a congressional committee.