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Democracy fails in the US Senate

March for Voting Rights
source: Wikimedia Commons

Roar writer Emma Fallside on how legislation to protect voting rights failed to pass in the US Senate and what it means for America’s divided democracy

Dating back to its founding, the United States has had a difficult relationship with voting rights. Until the 1830s, only landowning males could cast a ballot and African-Americans were disenfranchised from voting as recently as the 1960s with Jim Crow laws. While the passage of Civil Rights Act of 1964 and the Voting Rights Act of 1965 (VRA) marked significant progress in American democracy’s accessibility, major flaws still remain ranging from burdensome voter ID laws to partisan gerrymandering to the removal of polling places in communities of colour.

In addition, despite America’s reputation for free speech and fair elections, key voter protections have been struck down by the courts since the VRA was passed. One provision of the original law, known as “pre-clearance”, gave the Justice Department and federal courts oversight over the election practices in formerly segregated states with the intent of preventing discriminatory laws from being passed. However, the Supreme Court gutted those protections in 2013. Since then, a range of laws have been passed to disenfranchise minority voters. Disturbingly, unlike in the past, this voter suppression is not isolated to America’s formerly-segregated south but is happening across the country.

Attempts to suppress the vote at the state level has been met with multiple efforts to update federal voting rights legislation in order to protect minority voters. The most recent of these efforts was the Freedom to Vote: John R. Lewis Act named for John Lewis, a civil rights icon and Congressman from Georgia who passed in 2020. This bill combines two key pieces of pro-democracy legislation which have recently been proposed: the John Lewis Voting Rights Advancement Act, and the Freedom to Vote Act. The most important parts of the combined bill include provisions for:

  1. Reversing the outcome of Shelby County vs. Holder, the aforementioned court case that struck down the “pre-clearance” provision of the VRA
  2. Making Election Day a national holiday, with the day off of work so people can get to the polls
  3. Require states to allow voting by mail: a process which was threatened during the 2020 election
  4. Making voting more accessible to people with disabilities
  5. Outlawing partisan gerrymandering: a practice where congressional districts (the US-equivalent of parliamentary constituencies) are drawn to unfairly benefit a specific political party.

To Democrats, this bill represents an accumulation of Joe Biden’s administration’s promises to address inequality in elections. This became especially pertinent after former President Donald Trump’s false claims of “election fraud” and subsequent efforts by Republican states to restrict access to voting. To Republicans, federal voting laws represent an infringement on individual states’ right to organise their own elections. This is despite the fact that the Constitution explicitly allows Congress to formulate rules that states must follow in running said elections. However, the issues surrounding the passage of the voting rights bill are indicative of more than just campaign politics; it shows the deep divide within Congress and an increasing sign that the Biden administration has become politically deadlocked.

On January 13 the Freedom to Vote: John Lewis Act was passed in the US House of Representatives, where the Democratic Party currently holds a majority of seats. However, once passing in the House, the bill was then sent to the US Senate where it needs to pass in order to be signed into law. Currently, the Senate is evenly split between Democrats and Republicans but Vice President Kamala Harris’s tie breaking vote gives her party the effective majority. However, even with that majority, the voting rights bill failed to pass.

The reason why was not a matter of votes: it came down to the controversial Senate rule known as the filibuster. Essentially, it allows a party to debate for an unlimited amount of time in order to prevent a vote from being brought forward. Presently, the only way to end a filibuster is to invoke cloture, which requires a supermajority of 60 votes. This rule only applies to non-budget legislation which is why Democrats have been able to pass other laws, such as Covid-19 relief funds, without Republican support. The filibuster has stood in the way of both party’s agendas in the past with Democrats using it as recently as 2018 to block then-President Trump’s border wall.

Now, the filibuster is blocking the passage of vital legislation that could save American democracy. Republicans’ lack of support to invoke cloture on a voting rights bill was expected, which is why Senate Majority Leader Chuck Schumer proposed reforming the filibuster to allow the Freedom to Vote: John R. Lewis Act to pass with a simple majority. Rules changed only require fifty votes but moderate Democrats Joe Manchin and Kyrsten Sinema would not vote in favour of ending the long-standing Congressional tradition.

The failure of the Freedom to Vote: John Lewis Act is disappointing on multiple fronts. The failure to reform a corrupt, broken electoral system makes America sliding into authoritarianism all the more likely. At the same time however, the bill offers an insight into the intricacies of the American lawmaking process. This legislation especially shows how the spirit of compromise has not only been lost in American politics, but may now be a liability in the law-making process.

The moderates in the Senate who oppose getting rid of the filibuster take the stance of preservation of cooperation. Senator Sinema claims that the “disease of division” cannot be solved “by one party alone”. Hence why she and Senator Manchin would not vote to remove the filibuster. In their view, the requirement of 60 votes to override it means that there must be inter-party cooperation as neither party is likely to get supermajority on its own. In the last fifty years, a supermajority has been achieved only once: when Barack Obama cruised to victory in 2008 and helped Democrats win the bare minimum of 60 Senate seats. The requirement also provides a check on the majority party and prevents it from passing legislation based on a simple majority. Historically then, the filibuster was meant to prevent party domination in Congress as well as creating an incentive to bipartisan compromise to work to the benefit of both parties.

Today however, the filibuster has an entirely different association. Rather than fostering agreement, it is used as an additional tool of political polarisation. As has happened with the voting rights bill, the filibuster is now used to block party action and stalemate the government. There are some specific pieces of legislature that can bypass the filibuster using a mechanism called “budget reconciliation”; this is how former President Trump passed his tax cuts in 2017 and Biden his aforementioned Covid-19 relief bill. However, most legislation which the Biden administration has put on the front of their agenda simply will not be passed into law without bipartisanship. In the current climate of antagonism, this seems an unlikely outcome.

So, what is the solution to American voting rights? While moderates want to preserve the spirit of compromise within Congress, they are doing so at the risk of withholding free and fair elections. It is easy to see how Democrats could be working voting rights to their own electability advantage; these bills support their own party demographics, and would likely help to boost Democratic votes both in the Midterm Elections this year and in the later 2024 presidential election. However, it doesn’t change the fact that many of those voters are facing suppressive laws intended to curb their participation in elections.

Joe Manchin has expressed his wish to keep voting rights on the Senate floor until a bipartisan consensus is reached. However, he has been unable to find any Republican support for the voting rights bill that he himself wrote. In order to ensure Americans’ voting rights, moderates will have to make a choice: either to continue to try and revive the corpse of bipartisan compromise or to impair their own morals in order to make a stand.

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