It shouldn’t still be necessary to protect Americans’ right to vote almost 250 years into our country’s existence. It’s incomprehensible that state legislatures launching brazen voter suppression efforts are being met with anything less than widespread outrage and contempt.
There was a time when the Voting Rights Act was routinely reauthorized with broad bipartisan support.
But here we are in post-Trump America, where lying and election stealing attempts have become politically acceptable, where it can feel sometimes like the lies are winning. We have kraken lawyers, fake claims of voter fraud, entreaties to election officials to find more votes for the losing candidate. Yet, we lack a critical mass of Americans with a sense of outrage strong enough to force the country back from the brink.
President Joe Biden did not pull any punches when he spoke about the crisis in Philadelphia on Tuesday. “Some things in America,” he said as he invoked the right to vote, “should be simple and straightforward.” He called on Republicans to “stand up, for God’s sake” and accused them of having no shame. He directly and clearly held former President Donald Trump and his followers accountable for the spread of the big lie and for state legislative efforts designed to replace 2020’s failure to capture the election despite losing the vote with success in 2022.
But Biden didn’t articulate a plan for moving past the biggest impediment to restoring voting rights: the 60-vote threshold created by the filibuster. That threshold is clearly unattainable in this current polarized moment. As long as the filibuster is honored, it will be impossible to pass the laws that are necessary to restore voting rights protections.
Without new laws, which have passed the House but remain stuck in the Senate, essential protections, like those for voter registration and mail-in voting in H.R. 1, will not exist. Without the new voting rights act named in honor of Rep. John Lewis, there will be no restored ability to prevent discriminatory laws, like the one enacted recently in Georgia and the bills now under consideration in Texas, from going into effect. The robust protections Congress put in place when it approved the Voting Rights Act were forfeited when the Supreme Court gutted Section 5’s pre-clearance provisions in Shelby County v. Holder in 2013 and similarly eviscerated Section 2 this term in Brnovich v. Democratic National Committee.
So long as the filibuster requires 60 senators to pass legislation, those bills will never reach the Oval Office. The filibuster is the gorilla in the room.
Biden may not have addressed this roadblock directly, but he at least seemed to acknowledge its presence. He said, “We have the tools. The question is, do we have the will.”
That’s exactly the right way to describe the challenge the president now faces. Biden loves the Senate and understands it as few other presidents have. But he will have to pull off the ultimate act of statesmanship, bringing Democrats together to abrogate the filibuster, at least for voting rights legislation. Biden — who in his speech reaffirmed the “sacred oath” that obligates him to protect the country from all enemies, foreign and domestic (he emphasized domestic) — clearly knows what the stakes are. He knows it’s no longer enough to articulate a commitment to voting rights without follow-through.
While Biden didn’t specify how Democrats would get past the seemingly impenetrable 60-vote barrier in the Senate, there are some options. The most likely possibility at the moment is being advocated for by influential South Carolina Rep. Jim Clyburn, a Democrat, who has called for a “carve-out” that would exempt voting rights legislation from the filibuster. But Democrats like West Virginia Sen. Joe Manchin in the “radical middle” of the Democratic Party have not yet broken with their earlier support for preserving the filibuster.
Biden’s legacy may well turn on whether he can successfully maneuver his party into place. There are reports that Vice President Kamala Harris has been holding meetings with some of her former Senate colleagues, and she herself acknowledged the gravity of the issue, telling NPR, “The right to vote is the right that unlocks all the other rights.”
It’s difficult to comprehend how some Democrats could be more intent on preserving the filibuster than the fundamental right of the people they represent to vote. A limited carve-out seems like an elegant solution to the problem, particularly since Republicans ended the use of the filibuster for Supreme Court nominees in 2017, delivering Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Republicans did not hesitate to bypass the filibuster when it permitted them to achieve a key political objective. There is no reason to believe, regardless of whether Democrats create a carve-out here or not, that they would abstain from doing so in the future. With something as fundamental as the right to vote at stake, Democrats cannot afford to engage in niceties over parliamentary procedure and Senate traditions. The moment requires action.
Republicans will undoubtedly cry foul and subject any voting rights legislation Democrats pass to rigorous scrutiny in the courts. But there is no real choice to be made when the voting rights of all Americans are at stake. There is only obligation, and duty and love of country.
The right to vote is essential to what makes us Americans. The only option we have is to fight to preserve it — not to make sure the candidates we support win, but to make sure that we have a system of free and fair elections. Our system is not perfect, but that should only enhance our determination to perfect the right to vote, to make sure we cannot be dragged back into the era of poll taxes and literacy tests.
Maybe that’s extreme or overly dramatic. But if a minority creates a path to stay in power through election charlatanry, then some people’s votes won’t count in the next election. In a very real sense, if a political faction can subvert our elections by canceling the right of Americans who don’t support it to vote, the American experiment is at an end.
Biden said this week that he was not saying future elections were at risk to alarm us but that “you should be alarmed.” While he was speaking to all of us, it’s hard to escape the feeling he was speaking especially to Democratic senators.
We have reached a rare moment when the right thing to do has become both obvious and easy. The filibuster has a history of abuse as a vehicle for perpetuating racial discrimination. It is fitting to end it, or at least suspend it, to protect Americans’ right to vote.