On Wednesday, all 50 Senate Republicans voted to filibuster the For the People Act, a sweeping election reform bill that would thwart state efforts to suppress voting. The Republican opposition could be overcome if Democrats changed the Senate rules and allowed the bill to pass by majority vote. But at least two Democrats — Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) — are opposed to eliminating the filibuster. That means any bill to protect voting rights needs at least 60 votes, including 10 or more Republicans.
So what happens now?
State legislatures renew their push to restrict voting
In Texas, Governor Greg Abbott (R) just called a special legislative session for July 8. The primary purpose of the special session is to revive a sweeping voter suppression bill that Texas House Democrats defeated in May. Although Republicans control the Texas House and Senate, House Democrats were able to kill SB7 by leaving the chamber, breaking quorum before the midnight deadline.
In the days that followed, top Republicans in the legislature acknowledged there were issues with SB7. They claimed that a provision banning voting before 1PM on Sundays was a "typo." Another last-minute provision of the bill would have allowed Texas judges to declare an election "void" without bothering to determine if allegations of fraud would have had any impact on the outcome of the election. One of the chief authors of the bill, Representative Travis Clardy (R) now calls that policy "horrendous" and says he has no idea how it made it into the bill.
Nevertheless, Abbott vetoed all funding for the state legislature as punishment for not passing the bill to restrict voting as written.
Texans don't run from a legislative fight and they don't walk away from unfinished business. Funding should not be provided for those who quit their job early, leaving their state with unfinished business and exposing taxpayers to higher costs for an additional legislative session.
Both Abbott and Lieutenant Governor Dan Patrick ® are pushing for quick passage of something as close as possible to the bill that nearly became law last month. Texas House Speaker Dade Phelan (R) says he favors breaking the legislation into pieces, raising the prospect that the most controversial provisions could be defeated.
Texas Democrats are considering breaking quorum again "to prevent the passage of an elections bill during a special session." But it's unclear whether that will work again.
The next frontier: gerrymandering
The 2020 Census provides state legislatures with an opportunity to create new political districts for state and federal elections. It gives the party in power the opportunity to marginalize their opposition through creative line drawing. The For The People Act would have required redistricting to be conducted on a non-partisan basis. But with that legislation shelved indefinitely, and with new Supreme Court decisions giving state legislators broad discretion to create districts as they see fit, there are few limitations on what can be done.
An April 2021 report by Represent.us found "35 states have an extreme or high threat of having their election districts rigged for the next decade." Dozens of states allow politicians to draw maps in secret for partisan gain. The Supreme Court's 2019 decision in Rucho v. Common Cause made clear that the court would not block partisan gerrymandering — no matter how extreme.
Republican "gerrymandering efforts are expected to focus on urban areas in southern states that are home to a disproportionate number of voters of color." In Texas, for example, "mapmakers could try to add districts to the growing population centers of Houston and Dallas-Fort Worth without increasing representation of the minority and Democratic voters who account for that growth." In Georgia, "Republicans could net pick up one seat by rearranging the lines around Black people and other Democrats in the Atlanta area."
Although explicitly racial gerrymandering is technically still prohibited, the Supreme Court's 2013 decision in Shelby v. Holder "means that in 2021, some southern legislators will draw district boundaries without such oversight for the first time in 50 years." States will begin drawing new districts this fall when more detailed Census data becomes available. Experts "in both parties agree Republicans have the advantage."
The politicization of election administration
Voter suppression bills seek to reduce the number of voters. Gerrymandering seeks to dilute the power of the people who do cast ballots. These are not attractive aspects of American democracy but we've seen them before. But this year, Republicans are taking things to a new level, and attempting to politicize the administration of elections.
In Georgia, "members of at least 10 county election boards have been removed, had their position eliminated or are likely to be kicked off through local ordinances or new laws passed by the state legislature." Of that group, "five are people of color and most are Democrats… and they will most likely all be replaced by Republicans." Across the country, there have been 24 new laws passed in 14 states that "give legislatures more power over elections officials."
Trump repeatedly expressed frustration that state officials certified results despite Trump's false claims of voter fraud. In addition to legal changes, Trump allies are also seeking to seize control of elected positions. "Republicans who sought to undercut or overturn President Joe Biden’s election win are launching campaigns to become their states’ top election officials next year" in Georgia, Arizona, Nevada, and Michigan.
Is there a third way?
Democracy is under attack in states across the country and the situation demands a federal response. So far there are two scenarios being considered: 1. Attract the support of 10 Republicans for a voting rights bill, and 2. Convince all 50 Democrats to eliminate the filibuster. Neither of those things are likely to happen.
Are there any other options?
The third way would be to change the filibuster in a way that may allow voting rights legislation to pass without eliminating the filibuster. The AP reports that Democrats are considering three possible changes:
—require that 41 senators of the minority party be present if they want to block a vote on any legislation.
—create a narrow exemption for the rule to be suspended for any legislation dealing with voting and elections…
—require opposing lawmakers to speak on the floor continuously to block the legislation from advancing — a version of a talking filibuster that would include a gradual reduction in the number of senators who can prevent a vote -- starting at 60 and eventually reaching a simple majority over a period of weeks.
The unknown question is whether Manchin or Sinema would consider any of these options. Sinema, in a recent column in the Washington Post, says repeatedly that she opposes "eliminating" the legislative filibuster. But she doesn't explicitly rule out changes. Manchin, at times, has expressed an openness to changing how the filibuster works.
This could end up being wishful thinking. But it's worth a shot.