Democrats are faced with a choice on voting rights: Go big or go small

With their massive Build Back Better spending bill stuck in limbo, congressional Democrats hope to unilaterally push through new voting rights legislation despite Republican resistance and loud calls for a more bipartisan approach.

President Biden will speak next Tuesday in Georgia about voting rights, in support of two bills that Senate Majority Leader Chuck Schumer, D-N.Y., says he will call up for a vote this month.

Senate Majority Leader Chuck Schumer
Senate Majority Leader Chuck Schumer. (Al Drago/AFP via Getty Images)

The Freedom to Vote Act is a sprawling piece of legislation that would — among other things — expand early voting and voting by mail, introduce a national standard for voter ID and automatic voter registration, ban partisan gerrymandering, impose disclosure requirements on big donors, and make Election Day a national holiday.

The John Lewis Voting Rights Advancement Act, meanwhile, would bolster parts of the 1965 Voting Rights Act that have been weakened by recent Supreme Court decisions. In particular, court decisions have removed the need for states with a history of discrimination to “pre-clear” voting changes with the Justice Department, and have also allowed states to enact restrictions on voting in the name of stopping fraud even if that fraud is nonexistent.

Republicans in the Senate do not support either of these bills, and key Democrats do not support changing the rules of the Senate to bypass a filibuster and pass legislation with only 51 votes. Senate rules require a 60-vote supermajority to end a filibuster.

Democrats insist that Sen. Joe Manchin, D-W.Va., and Sen. Kirsten Synema, D-Ariz., might support a tweak of filibuster rules. One such tweak would require the minority party to hold the floor with at least 40 members physically present to conduct a filibuster. But so far, there is no indication from Manchin or Sinema that they are ready to get behind such an effort.

The Democrats’ new voting push comes amid fears that far-right Republicans could successfully reverse a future presidential election. Former President Trump and his allies attempted to do just that after the 2020 election, which culminated in the violence at the Capitol last January. Liberals also argue that Republicans at the state level are passing voting restrictions in an effort to boost GOP candidates by reducing turnout.

And Republican-controlled legislatures have passed laws in several states that give partisan politicians more ability to tamper with election results after voters have cast ballots.

Kyrsten Sinema and Joe Manchin
Sen. Kyrsten Sinema and Sen. Joe Manchin catch and an elevator in the U.S. Capitol. (Kent Nishimura/Los Angeles Times via Getty Images)

Voting experts who are concerned that the United States is heading for a constitutional crisis — and potential political violence — are warning that Democrats need to shift gears and prioritize a more narrow set of reforms that they believe give the country a better chance at averting catastrophe.

“Democrats should not try to go it alone in preserving free and fair elections,” Richard Hasen, professor of law and political science at the University of California, Irvine, wrote in the New York Times.

“Flying solo is a big mistake. Democrats cannot stop the subversion of 2024 election results alone, particularly if Democrats do not control many statehouses and either house of Congress when Electoral College votes are counted on Jan. 6, 2025.”

Former President Jimmy Carter sounded a dire warning as well this week in his own Times column.

“Our great nation now teeters on the brink of a widening abyss. Without immediate action, we are at genuine risk of civil conflict and losing our precious democracy. Americans must set aside differences and work together before it is too late,” said Carter, who celebrated his 97th birthday last fall.

There is a move within the Senate by a bipartisan group of Senators to focus on one issue in particular: the Electoral Count Act of 1887.

Sen. Susan Collins, R-Maine, convened a group of Republicans and Democrats this past week to talk about clarifying a piece of the law that Trump tried to exploit in his attempt to overturn the 2020 election.

Senator Susan Collins
Sen. Susan Collins at the Capitol last month. (Sarah Silbiger/Bloomberg via Getty Images)

Republican lawyer Ben Ginsberg and Hasen both identified this law as a key target of reformers a year ago, before the Jan. 6 insurrection ever even occurred.

Senate Minority Leader Mitch McConnell, R-Ky., and his top deputy, Senate Majority Whip John Thune, R-S.D., have both indicated recently that they support this effort.

The editors of National Review, a conservative magazine, wrote last month that “at a minimum” a reform of the Electoral Count Act “should make explicit and undeniable that (1) the vice president does not decide which electoral votes to count; and (2) states that hold popular votes to choose electors cannot later attempt to have their legislatures select their own electors.”

“There is also a strong case for requiring more than a single senator to object to a state’s electors in order to trigger a vote, for requiring more than a majority vote of each house to throw out a certified slate of electors, and for clarifying that Congress is not the place to relitigate any challenge that was, or could have been, raised in the courts or in state election-contest proceedings,” National Review said.

Yuval Levin, a leading conservative thinker at the American Enterprise Institute, also said legislation could “limit the ability of state officials to remove local election administrators without cause, and prohibit the harassment of election workers” and “could mandate a mechanism for post-election audits while requiring a clear standard for rendering election results final.”

Top Democrats so far are resistant to this effort. They want to go for a big bill that will invigorate their base voters, and argue that the broader legislation is needed to protect against efforts by Republicans to throw out legal votes, as they attempted to do in 2020.

Levin and others have pointed out that restrictions on voting have not, in recent years, kept Americans from casting ballots. They also note that academic studies have shown that increases or reductions in voter turnout have not had a partisan impact favoring either party, despite the long-held assumption in both parties that greater turnout tends to benefit Democrats.

Mitch McConnell
Senate Minority Leader Mitch McConnell. (Stefani Reynolds/Bloomberg via Getty Images)

Some who have criticized pro-Trump Republicans for their attempts to subvert democracy are now calling on Democrats to trim their sails and get behind the more targeted effort.

“The crisis of democracy is right in front of us. ... Democrats have spent too much time on measures that they mistakenly think would give them an advantage,” New York Times columnist David Brooks wrote.

“The right response would be: Do the unsexy work at the local level, where things are in flux. Pass the parts of the Freedom to Vote Act that are germane, like the protections for elections officials against partisan removal, and measures to limit purging voter rolls. Reform the Electoral Count Act to prevent Congress from derailing election certifications.”

“When your house is on fire, drop what you were doing, and put it out,” he said.

But there is great distrust among many reformers that McConnell is serious about changing to the Electoral Reform Act.

“Do not take McConnell's willingness to discuss reforming the Electoral Count Act at face value. He will float tiny changes in the ECA to head off real election and voting reform [and] likely resist meaningful reform in the Act,” wrote Norm Ornstein, a liberal scholar at AEI.

In the meantime, Democrats will continue to pressure Sinema and Manchin to embrace changes to the filibuster, such as a carve out that will allow voting rights bills to pass with a simple majority. The two centrists, however, continue to show deep reluctance to altering the filibuster, which means Democrats may have no choice but to strike a deal with McConnell instead.