The Filibuster, Democracy, and Voting Rights: 3 Things We Need to Get Right

Senate Republicans used their narrow majority and a filibuster to block efforts by their Democratic counterparts to pass new voting rights legislation. Lacking the requisite 60 votes to push the bill through, Democrats were unable to pass the John Lewis Voting Rights Advancement Act (JLVRA), a revision to part of the 1965 Voting Rights Act (VRA). The JLVRA t would replace components of the VRA  struck down nearly 10 years ago by the U.S. Supreme Court. As reported by CBS News, in June of 2013, “the court ruled that Section 4 of the Voting Rights Act is unconstitutional.”  

According to the U.S. Justice Department, the purpose of Section 4 was to address concerns that  “racial discrimination in voting had been more prevalent in certain areas of the country,” and there was a need to establish “a formula to identify those areas and to provide for more stringent remedies where appropriate.” There were several components or sections to Section 4:  

  1. A five-year suspension of “a test or device,” such as a literacy test as a prerequisite to register to vote
  2. The requirement for review, under Section 5, of any change affecting voting made by a covered area either by the United States District Court for the District of Columbia or by the Attorney General
  3. The ability of the Attorney General to certify that specified jurisdictions also required the appointment of federal examiners
  4. The authority of the Attorney General to send federal observers to those jurisdictions that have been certified for federal examine
  5. A guarantee of the right to register and vote to those with limited English proficiency

While Section 4 is important as a separate piece of legislation, it had direct ties to other sections, such as Section 5. As Vox points out, Section 5 of the  VRA “provides that any changes to voting laws in the jurisdictions covered by Section 4’s formula can’t be enforced until they are approved by either a three-judge court in the District of Columbia or by the attorney general of the United States — a process known as preclearance’ — to ensure they do not have a harmful impact on minority voters.”

By striking down Section 4, Section 5’s use of preclearance was effectively neutered, meaning it could not longer be enforced by the justice department. The end result is that states were free to redistrict as they saw fit. Much of the backlash was precipitated by Republicans’ suspicions that the Eric Holder Justice Department under the auspices of President Brack Obama was using the weight of the federal government to influence elections by controlling redistricting efforts, thereby compromising a state’s autonomy under the concept of Federalism. 

Reacting to the 2013 Supreme Court decision, Michael “David” Bellow Jr., a State Republican Executive Committeemanat the time of the decision, wrote

“Texas can redistrict without oversight by Holder. Other states get to redistrict without oversight and it was discriminatory to require Texas to get Holder’s approval first. South Carolina can implement their Voter ID Law and so can Texas. It was wrong to allow other states to have the same Voter ID Law but block South Carolina, Mississippi, Alabama and Texas just because Eric Holder wants to. Texas GOP no longer has to be forced to keep the Republican Primary election the way Eric Holder wants it.”

Currently, the push to revise and strengthen the VRA comes as a response to the numerous state-level voting rights laws passed since 2020. A USA Today analysis “revealed a variety of changes voters may notice and other administrative changes happening behind the scenes” and “about 55 million eligible voters live in states with changes that will give them less access.”

Senate Democrats found a lone-Republican ally in the form of  Sen. Lisa Murkowski (AK), who said,“Voting rights are fundamental to our democracy and how we protect them defines us as a nation. I have supported this particular legislation in previous Congresses and continued to work with my colleagues on it, because it provides a framework through which legitimate voting rights issues can be tackled.” Of course, Murkowski’s support was ultimately nominal given the Republicans’ intransigent response to the proposed legislation. 

As a last-ditch effort to keep the discussion around voting rights going, Democrat Joe Manchin (WV) offered an amended version of the proposed voting rights legislation, only to find that Republicans filibustered this proposal as well. This response drew the ire of the press, with investigative journalist Ari Berman tweeting, “Can someone please ask @Sen_JoeManchin what happened to 10 Republicans he promised would support Freedom to Vote Act & how he plans to pass his voting rights bill without changing filibuster rules?” 

Despite the efforts of Senator Joe Manchin (D-WV), the John Lewis Voting Rights Act was defeated via a Republican filibuster.

Berman’s tweet gets at the heart of the matter, which is that although Republicans only have 49 Senators that oppose the legislation, their use of the filibuster prevents legislation from being brought up to debate, a process known as cloture. Frustrated by her fellow Senate Republicans to prevent an open discussion about the bill, Sen. Amy Klobuchar (D-MN) contended, “If they’re not going to do this, then we have to look at what’s next, and I believe that is restoring the Senate. We can’t deny debate. They are literally stopping us from debating something,”  adding later: “At some point, our democracy has to move along, so that’s a discussion we’ll be having.”

By preventing debate about the proposed legislation,  Republicans essentially make the efforts of Democrats DOA. One way to overcome the filibuster is by amassing a supermajority of 60 senators to overcome the filibuster. President Biden has argued that Democrats may have to “fundamentally alter” the filibuster to achieve their legislative goals. Another option is for Democrats to do away altogether with the filibuster, which would allow debate and auger their chances of passing legislation. 

Yet, this is a dangerous, if not potentially catastrophic move because while it might buy them more power now, a future Republican-controlled Senate would then have the ability to steamroll any opposition, which is a threat to our slowly ebbing democratic institutions.

This sentiment was expressed by Senator Mitt Romeny of Utah, considered to be a centrist by his colleagues, who expressed his concern with abolishing the filibuster, stating: “The need to marshal 60 votes to end a filibuster requires compromise and middle ground. It not only empowers the minority but also has helped to keep us centered, fostering the stability and predictability essential to investment in people, in capital and in the future” adding, “Have Democrats thought through what it would mean for them for Trump to be entirely unrestrained, with the Democratic minority having no power whatsoever? If Democrats eliminate the filibuster now, they — and the country — may soon regret it very much.”

President Obama called the use of the filibuster,”a relic of the Jim Crow era.” Yet, when he was a Senator in 2005, Obama vehemently opposed ending the filibuster, proclaiming, “If the majority chooses to end the filibuster if they choose to change the rules and put an end to Democratic debate, then the fighting and the bitterness and the gridlock will only get worse.” 

In fairness, Obama was likely referring to the use of the filibuster to prevent what he perceives as measures to restore voting rights, rather than the filibuster itself. 

Perhaps the concept of a filibuster is antiquated, or even counterproductive and we should do away with it.

But I suspect that’s not the real issue. The Republicans’ unwillingness to work with their Democratic counterparts is part and parcel of an ugly dynamic that colors everything in the Beltway these days. The mantra for both sides should be, “Oppose, oppose, oppose, at all cost.” Even the backbone of our democracy, the right to vote, is on the ever-growing partisan chopping block, making the Republicans look petty, mean, and racist. 

Even if they are not racist in their intent, even if they have sincere, valid objections to aspects of the JLVRA, they are coming across as stubbornly recalcitrant at best, and anti-democratic at worst. If Republicans are worried that people won’t vote for them, perhaps they should look at their stances on issues many voters, especially younger voters, find objectionable if not odious.

They can and must do better, but that also requires them to finally escape the dark shadow of the Donald Trump legacy. It’s evident that this shadow darkens and pervades everything they do these days because Republicans had consistently supported voting rights measures for the previous five decades, prior to the Trump ascendancy. This type of pettiness is unacceptable as it makes our country look childish and peevish. Didn’t we have enough of that animus for four years? 

For their part, Democrats must quit pretending they are merely acting on the people’s behalf rather than taking measures to sustain their electability. For example. supporting illegal immigration not only puts immigrants at risk, but also undermines the rule of law while simultaneously generating a large swath of future voters who are beholden to the U.S. government. If Republicans see these latest voting rights measures as a power move to remain in office, then Democrats must be willing to open their collective eyes regarding this perception. 

Furthermore, they must stop being hypocrites about rules they believed were honorable when they were using them, but through some political alchemical process became detestable when used against them. Once again, it’s childish and petulant and it has no palace in the most powerful deliberative body in our country. 

From an outside perspective, the average U.S. citizen sees Congress as a collection of pretentious, infantile, partisan idiots incapable of working together, regardless of whether R or a D processes their name. It’s time for the charade to end.