The Senate Rules and Administration Committee is holding a hearing today on S.1, the upper chamber’s version of the For the People Act, the sweeping voting-rights legislation already passed by the House on a near-party-line vote. There will be witnesses on both sides of the aisle and lots of thunder and lightning (both Chuck Schumer and Mitch McConnell will attend the hearing, which is rare). But it might be wise to pay particular attention to the testimony of West Virginia secretary of state Mac Warner, a Republican who predictably opposes the legislation. That’s because the lawmaker who likely holds the fate of S.1 in his hands is Warner’s senator, Joe Manchin, who happens to be the only Democratic senator who didn’t co-sponsor the legislation.
Manchin is also, of course, the key Democrat in the debate over the fate of the filibuster, which in its current form is an absolute bar to enactment of S.1 and nearly every other piece of Democratic-sponsored legislation that cannot be pushed through the Senate under the budget reconciliation rules. One of the avenues for filibuster reform that is especially relevant to the voting-rights emergency unfolding around the country (as Republican-controlled state legislatures restrict access to the ballot and prepare for another round of partisan gerrymandering) is a subject-matter exception for basic measures to protect democracy. So far Manchin has not expressed any support for such an exception, but he has not categorically ruled it out, either. Since Manchin is famously focused on his home state’s interests, it’s worth considering how S.1 is being received in West Virginia, aside from Warner’s testimony against it.
According to the Wall Street Journal, Manchin is getting an earful from state and local election officials back home:
West Virginia election officials are lobbying Democratic Sen. Joe Manchin to oppose his party’s voting-rights legislation, again underscoring his pivotal role as the Senate’s most prominent centrist …
On [a] call Monday, West Virginia election officials voiced concerns about the bill, according to three participants on the call. One of them was Jan Pest, the Democratic county clerk in Marshall County, W.Va. Among other concerns, Mrs. Pest criticized the bill for mandating same-day voter registration, which she worries would invite fraud. Studies have found that voter fraud has been rare.
Warner told the Rules Committee that S. 1 is “anything but ‘for the people.’” He complained that it “stomps on states’ rights,” and imposes unfunded mandates on election officials. He reflected the general Republican take that “federalization of elections” is unnecessary and probably unconstitutional.
It’s worth noting that West Virginia has relatively restrictive voting rules. Current law doesn’t allow for no-excuse voting by mail (though the state did allow anyone to vote by mail temporarily in 2020, under an existing “health” exception). West Virginia has voter ID requirements, and does not provide for same-day, much less automatic, voter registration. In-person early voting is allowed, but only for a relatively brief ten-day period. The state has undertaken arguably overzealous and discriminatory purges of voter rolls. Redistricting is conducted by the state legislature, not any independent authority. All these practices would be overturned by S.1. It seems unlikely that Manchin would go the whole hog on such legislation, much less treat it as worthy of an exception to a filibuster precedent that he generally supports.
It’s important to understand that S.1 isn’t some sort of seamless garment of voting-rights essentials. Election law expert Rick Hasen, a strong voting-rights proponent, has argued that some elements of the For the People Act, like mandatory ex-felon enfranchisement may be found unconstitutional, while others, particularly public financing of congressional elections, are a bit remote from voting and voter registration. A more limited version of S.1, perhaps combined with the John Lewis Voting Rights Advancement Act (aimed at restoring provisions of the Voting Rights Act of 1965 killed by the Supreme Court in 2013), would not be subject to judicial revocation or nearly as much legitimate controversy. Indeed, some complaints about S.1 that seemed to agitate Mac Warner at the Rules Committee hearing (like the inability to conduct electronic transmission of military ballots), could be taken care of with amendments without doing violence to the bill’s central thrust.
More immediately, a limited bill focused on voting-rights essentials might secure Manchin’s support, particularly if he could take credit for convincing other Democrats to favor a more modest approach. It’s doubtful, for example, that restoration of Voting Rights Act provisions would trouble election officials in West Virginia, since the state was never under the requirement for Justice Department “preclearance” of voting-rules changes that the Supreme Court neutered in Shelby County v. Holder.
The prime objective for Democrats this year is to stop the rapid rollback of voting rights by Republican state officials that could skew election outcomes even more in the GOP’s favor for years to come. Maybe the courts will stop some of these reactionary excesses, but federal preemption via legislation is the only expeditious remedial measure available, and that’s going to be impossible without Manchin and other Democrats who aren’t sold on killing the filibuster altogether. A more realistic package of voting-rights guarantees would be helpful, along with the compelling argument that letting Republicans get away with an assault on the franchise will likely extinguish the careers of the very red- and purple-state Democrats who are reluctant to “overreach.”