voting rights

Bipartisan Voting-Rights Legislation May Simply Be Impossible

If Manchin had been a Republican after the Civil War, we might not have a 14th or 15th Amendment. Photo: Tom Williams/CQ-Roll Call, Inc via Getty Images

Now that the sweeping For the People Act has been killed by a Senate Republican filibuster and Mitch McConnell has brutally destroyed any GOP support for a Joe Manchin–sponsored voting-rights compromise, prospects for legislation in this area have pretty much dropped to zero. Yet the experience apparently hasn’t shaken Manchin’s (or his sidekick Kyrsten Sinema’s) determination to oppose any filibuster reform that may change the equation.

From a practical point of view, this means Republican-controlled state legislatures will continue to ravage voting rights (subject only to a counterattack from Merrick Garland’s Department of Justice) without any constraints from Congress while Democratic defenders of Senate tradition wait patiently for a miracle that will restore bipartisanship.

Manchin in particular has drawn attention to how recently Republicans used to vote for extensions of the Voting Rights Act of 1965 (the Senate approved the last 25-year extension unanimously in 2006). But after the Supreme Court gutted the key enforcement provision of the VRA in 2013, there has been scant Republican interest in fixing it, as evidenced by the fact that only one Senate Republican (Alaska heretic Lisa Murkowski) currently supports legislation to restore the law.

While Manchin harkens back to the voting-rights bipartisanship of the recent past, Ron Brownstein explains that the situation facing voting-rights activists is more congruent with a much earlier era: the post–Civil War period, in which Republicans who were determined to enfranchise ex-slaves were opposed by a united Democratic Party:

While today’s sharp party-line conflict over voting and civil rights departs from the dynamics during the 1960s, politicians from the 1860s would have no trouble recognizing it. The Republican Party was formed in the 1850s explicitly as a Northern coalition opposed to the spread of slavery; the Democratic Party, not only in its dominant Southern wing but also among its Northern members, resolutely opposed federal action to restrict slavery in the years before the Civil War and then fiercely fought the Republicans’ efforts to ensure rights and economic opportunities for the freed slaves after the war.

Not a single congressional Democrat voted for the 14th and 15th Amendments providing the now-familiar constitutional guarantees of due process, equal protection of the laws, and (for racial minorities, at least) voting rights. Had Manchin or Sinema been among the congressional Republicans of the time and demanded bipartisanship before proceeding with these landmark accomplishments, Brownstein notes acidly, they would never have been enacted. Fortunately, post–Civil War Republicans pushed them through Congress on party-line votes.

One reason the congressional Democrats of the 1860s (and later decades) unanimously opposed voting-rights measures is that they were very clearly aimed at state-level voter-suppression activities (often terroristic) being carried out or protected by state-level Democrats in the South. It’s the same partisan solidarity — rationalized by states’-rights rhetoric — being deployed by Republicans right now. And there’s no historical reason to assume that will change soon this time around.

The Democratic antipathy to voting and civil rights for Black folks in the late 19th century hardened into 20th-century dogma via historical myths involving the Civil War as a tussle over constitutional theory, Reconstruction as a barbaric and corrupt reign of terror over a supine region, and restoration of home rule (or “redemption,” as it was known by white southerners) with its re-subordination of ex-slaves a triumphant landmark of national reconciliation. The Trumpian lies about the stolen 2020 election, based on ancient falsehoods about voter fraud (invariably associated with minority voters), also seem to be hardening into a powerful myth that will dissuade any interest in national voting-rights legislation among Republicans for a long time. More fundamentally, the partisan polarization that stemmed gradually but steadily from the ideological sorting out of the two major parties that began in the civil-rights era makes the kind of bipartisan civil- and voting-rights coalitions of the late 20th century increasingly unlikely. For all the fetishization of Republican moderates like Murkowski and Susan Collins, they are a far cry from the genuine liberals who populated the Republican Senate Conferences of the 1960s and ’70s, like Jacob Javits, Clifford Case, Ed Brooke, and Margaret Chase Smith.

So how long must other Democrats wait for Manchin and Sinema to wake up and smell the coffee? Is there any voting-rights compromise left that is worth the cost of a trial balloon?

Political commentator Bill Scher has sketched out an allegedly viable compromise at Washington Monthly with three elements: a national voter-ID mandate (designed to attract Republicans), a national re-enfranchisement of ex-felons and non-incarcerated felons (a Democratic priority some Republicans have supported), and an increase in federal criminal penalties for election manipulation (intended to deter the postelection shenanigans of Team Trump). Personally, I seriously doubt there is enough in this for either party to lubricate a deal, and even if one did, the compromise might resemble the Civil Rights Act of 1957, a piece of legislation so emptied of significant provisions that it mostly just served the symbolic purpose of proving a bill with the words civil rights in it could survive in a filibuster-addled Senate.

Clearly, ideas for un-meaningful voting-rights bills may continue to give hope to those who, like Manchin and Sinema, seem to value bipartisanship more than substantive accomplishments. And even if it becomes obvious to them that they may have to wait until the end of time for Republican interest in voting rights, they could fall back on the argument Sinema voiced most emphatically in her op-ed defending the filibuster:

To those who want to eliminate the legislative filibuster to pass the For the People Act (voting-rights legislation I support and have co-sponsored), I would ask: Would it be good for our country if we did, only to see that legislation rescinded a few years from now and replaced by a nationwide voter-ID law or restrictions on voting by mail in federal elections, over the objections of the minority?

Better to do nothing, she is essentially saying, than to do something and risk its reversal, along with the divisiveness and incivility of partisan warfare. Without any question, the development of American constitutional and statutory law involving civil and voting rights would have been very different if the authors of the 14th and 15th Amendments — or, for that matter, of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 — had maintained this timorous attitude subordinating the interests of constituents to the collegiality of politicians.

Unfortunately, it’s doubtful that history-based shaming will move Manchin, who represents a heavily Republican state, or Sinema, who has apparently decided that being a Democrat who infuriates other Democrats is a successful “brand” in her closely contested state. But as the window for filibuster reform (and, quite possibly, for the current Democratic trifecta in Washington) closes, it’s important to deny their point of view the respectability so often endowed by media gabbers who also have an anachronistic passion for bipartisanship as an end in itself. When it comes to nationally guaranteed voting rights (among other priorities that once had bipartisan support), we are living at a time when the real choice is partisan activism or paralysis. I hope to live long enough to see that bleak reality change, but I’m not betting on it.

Bipartisan Voting-Rights Legislation May Just Be Impossible