Asked about the path to enact new voting rights laws, Senate Majority Leader Charles E. Schumer (D-N.Y.) has repeatedly offered a pat reply: “Failure is not an option.”
But failure is very much an option — it is, in fact, the most likely one.
A Senate committee last Tuesday reached a partisan deadlock over Democrats’ sprawling overhaul of federal election, ethics and campaign finance law — the For the People Act, also known as H.R. 1 or S. 1 — and there is no clear path to breaking it. A Thursday lunch meeting of Democratic senators to discuss a way forward did not produce any breakthroughs, and lawmakers, aides and activists said they have little more than blind hope that one will materialize.
Leaving the meeting, Sen. Jeff Merkley (D-Ore.), a lead author of the For the People Act, said that progress “starts with the conversation among the senators, getting focused on it, getting familiar with the details, getting all the questions answered. . . . That’s a conversation we really started in full focus today.”
Yet the most important Democrat to the fate of voting legislation didn’t even attend the meeting and thus wasn’t part of the discussion. Sen. Joe Manchin III (D-W.Va.) was in his home state, attending an event with first lady Jill Biden and actress Jennifer Garner — not huddled in a Capitol Hill conference room seeking a way forward.
Manchin is the only Senate Democrat not to have co-sponsored the bill, and he has expressed serious misgivings about the For the People Act — and, more generally, moving forward on any type of voting legislation without Republican buy-in.
“I think it’s too darn broad, and we got no bipartisan support,” he told reporters Wednesday. “The country is more divided today than it’s ever been.”
The For the People Act, which passed the House in March, would provide minimum standards for early voting, vote-by-mail and automatic voter registration — overriding many of the provisions in new Republican state laws and expanding voter access in some Democratic states. But it also would impose a plethora of new federal mandates that include nonpartisan congressional redistricting, public campaign financing, “dark money” disclosures and more.
Republicans have assailed the bill as an unwarranted federal intrusion in state election administration and a massive power grab by Democrats. They voted last Tuesday en bloc in the Senate Rules and Administration Committee to reject it, creating a tie in the evenly split panel.
Manchin said he instead supports an alternative — a refurbishment of the Voting Rights Act of 1965 now known as the John Lewis Voting Rights Advancement Act, named after the late Georgia congressman and civil rights icon, which would reestablish mandatory Justice Department oversight over voting laws in jurisdictions with a history of discriminatory practices, which previously included eight Southern states plus Alaska.
Manchin suggested he would support extending the preemptive federal reviews, known as “preclearance,” to voting laws in all states and territories — a massive expansion of the landmark law that broke the back of Jim Crow.
In a joint letter to congressional leaders Monday, Manchin and Sen. Lisa Murkowski (R-Alaska) called for bipartisan action to restore preclearance. “Protecting Americans’ access to democracy has not been a partisan issue for the past 56 years, and we must not allow it to become one now,” they wrote.
But, according to interviews with lawmakers, it is no more likely that reestablishing the federal reviews could pass an evenly divided Senate than the For the People Act could. Manchin reiterated last week that he is unwilling to overturn the filibuster, the Senate’s 60-vote supermajority rule, and key Republicans said they were uninterested in supporting the John Lewis legislation.
Historically, there has been bipartisan support for the Voting Rights Act of 1965. The last congressional reauthorization, in 2006, passed the Senate 98 to 0. But the issue became bitterly partisan following the Supreme Court’s 2013 decision in Shelby County v. Holder, in which Chief Justice John G. Roberts Jr. helped strike down the preclearance mandate, finding that Congress had not done enough to justify continued vigilance in those historically discriminatory jurisdictions.
Post-Shelby attempts to restore the mandate have garnered little GOP support, and several Republican senators said last week they saw no reason to revisit the issue.
The Voting Rights Act restoration bill introduced in the Senate in the last Congress had a single Republican co-sponsor, Murkowski, while the House bill had no GOP co-sponsors.
Sen. John Cornyn (R-Tex.) said he expected both bills to meet the same fate, referring to the John Lewis bill as “just a backdoor way of trying to do what they’re trying to do through the front door, which is to get the federal government basically to manage the voting system.”
“If the bill was passed in the first place to get Black people to vote, and they’re turning out a higher percentage than Whites are, what’s the problem?” said Sen. Charles E. Grassley (R-Iowa).
Sen. Lindsey O. Graham (R-S.C.) said he believed reimposing preclearance would not be “fair” to the residents of his state, which had been subject to federal oversight before the 2013 ruling.
“This whole idea, this is just an effort to make everything about race,” he said. “There’s no problem to fix in South Carolina. This is a manufactured problem, making every Republican a racist, and it ain’t working.”
There’s another problem with substituting the John Lewis voting rights bill for the sprawling For the People Act: It still has to be written.
The bill has yet to be introduced this Congress, although the House Judiciary Committee is expected to hold hearings in the coming weeks in hopes of introducing and advancing it to the House floor in the summer, according to lawmakers and aides. Part of the challenge is compiling an evidentiary record that can withstand the scrutiny of federal judges, including a Supreme Court that is considerably more conservative than the one that ruled on Shelby County.
The other problem for Democrats is that even if it were to pass, it would come too late to stop the laws that have been enacted in Georgia, Texas and other states rolling back access to early voting, vote-by-mail and other voter-access provisions guaranteed under the For the People bill. And some Democrats fear that its passage simply would prompt more Republican states to pass strict voting restrictions before preclearance came back into effect.
Several key Democrats said last week that both bills are necessary and that it simply was not possible or prudent to substitute one for the other. Sen. Raphael G. Warnock (D-Ga.) made an impassioned plea for action in Thursday’s closed-door meeting, according to attendees, and he told reporters afterward that abandoning the For the People Act simply would not do.
“The John Lewis Voting Rights Advancement Act builds for us the fire station to protect us against future fires,” Warnock said. “But the house of democracy, as a result of these voter suppression bills all across the country, is on fire right now.”
His House colleagues agree.
“They’re both critically important. But in no way can you view either one substituting for the other,” said Rep. John Sarbanes (D-Md.), the lead author of H.R. 1. “From a timing standpoint, the one that is ready to go now and make a huge difference is [the For the People Act]. So you got to grab the opportunity when it’s there.”
Rep. Sheila Jackson Lee (D-Tex.), who is shepherding the John Lewis bill through the House Judiciary Committee, said Democrats “need to run with what’s going to save your life because, right now . . . voting rights have been massacred across America, and unless we get some form, some lifesaver, some rope, some tool to drag us in, I know for sure what happens to my constituents — intimidation.”
Still, the near-apocalyptic rhetoric Democrats have adopted about the stakes for voting rights legislation has not translated into a surefire strategy for success. Privately, Democrats acknowledge that success is almost entirely dependent on Manchin changing his mind about both the legislation and the need to eliminate the filibuster, and they concede that is unlikely to occur — particularly in the short time window Democratic leaders are eyeing for action later this year.
Privately, Schumer has urged Democrats to stay united as they move the legislation to the Senate floor later this year. Publicly, they are simply hoping that something will change by that point.
“We’ve got a lot of different opinions in the caucus, and I think there’s a general consensus that we have to move forward on democracy reforms. But it’s going to take us, you know, a little while to get everybody on the same page,” said Sen. Chris Murphy (D-Conn.).
Sen. Richard J. Durbin (Ill.), the chief Democratic vote counter, waxed philosophical before Thursday’s meeting when a reporter asked about the political box canyon his party appears to have wandered into: “Some people look at a doughnut and just see the hole.”
He added, “I say a prayer every morning and evening for Joe Manchin.”