The Supreme Court and the filibuster both have to change if our democracy is going to be saved
Alabama Rep. Terri Sewell on Tuesday stood on the infamous Edmund Pettus Bridge, the site of the brutal Bloody Sunday beatings of civil rights marchers on March 7, 1965, to formally introduce the John Lewis Voting Rights Advancement Act in the House. She was joined by Sen. Patrick Leahy of Vermont, who is sponsoring the bill in the Senate. The House is going to take up the bill next week, during its short August session.
“Today, old battles have become new again as we face the most pernicious assault on the right to vote in generations,” Sewell said Tuesday. “It’s clear: federal oversight is urgently needed.” A House committee also held a hearing on the bill this week in preparation for its introduction. Assistant attorney general for civil rights Kristen Clarke told the panel, “We have seen an upsurge in changes to voting laws that make it more difficult for minority citizens to vote and that is even before we confront a round of decennial redistricting where jurisdictions may draw new maps that have the purpose or effect of diluting or retrogressing minority voting strength.”
Why yes, we have. That’s thanks to the decision by John Roberts’ Supreme Court majority in the 2013 Shelby v. Holder case to gut the Voting Rights Act by ending federal oversight of states and localities with a history of voter suppression. Under the VRA, states and localities had to get approval from the Department of Justice to change registration and voting laws. Once that provision was struck down, all hell broke loose in the war on voting. This session, the extremist Supreme Court struck down the last part of the law that had any real teeth in stopping voter suppression.
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Restoring the VRA is essential to restoring democracy, as is the further move of passing the For the People Act. Republican lawmakers across the nation are diabolically creative and brutal in passing new voter suppression laws. The redistricting process now underway is also going to be dominated by Republicans in much of the nation, and will further cement minority rule/. That is, unless gerrymandering is ended at the federal level. That’s one thing that the For the People Act would do.
Passing this legislation in the House will happen. It won’t in the Senate—not without an end to the legislative filibuster. The only Republican who has given any indication that she would vote with Democrats to restore voting rights is Alaska’s Lisa Murkowski. The remaining necessary nine GOP votes simply doesn’t exist, whatever Democrats Joe Manchin and Kyrsten Sinema try to tell you. That’s the first institutional hurdle that has to be overcome to restore simple representative democracy in this nation.
Senate Majority Leader Chuck Schumer is taking another run at it. Before the Senate left for August recess, he set up a vote on the For the People Act as one of the first actions for the Senate’s return in September. “Voting rights, voting rights, will be the first matter of legislative business when the Senate returns to session in September. Our democracy demands no less,” Schumer said. He should adopt a new mantra: “Filibuster reform, filibuster reform, filibuster reform,” because without it, voting rights ain’t happening.
The filibuster isn’t the only institutional obstacle to voting rights, however. Because this Supreme Court, with its six conservatives (and at least four extremists) will likely look for any excuse at all to strike these laws down. That’s one reason it’s taken this long for the House to move on the Lewis Voting Rights legislation. They’ve been building the legislative history for it to try to make it bullet-proof in the courts.
“Whichever way congress would go in trying to amend the Voting Rights Act and reestablish some form of preclearance, it’s going to have a Supreme Court where at least some members are going to be extremely skeptical of congressional power in this area,” Rick Hasen, law professor at University of California, Irvine told CNN. That’s what the House has been attempting to answer.
They’ve amassed thousands of pages of testimony and documents to demonstrate that restoring preclearance is necessary in the face of current racial voting discrimination. “We’re putting it together in a report so that next time there’s a lawsuit, they can’t throw it out on these grounds that the data are old, that we’re basing it on something that is outdated,” a House Administration Committee staff member said. “Because we’ve gone out and collected evidence and testimony—thousands of pages of it.” The House, at least, recognizes that they have an actual enemy in the Supreme Court. So far President Biden and a Senate Democratic majority haven’t accepted that.
That’s the second big institutional change that has to happen: The Supreme Court has to be reformed. The easiest and probably most essential means for that is expansion, but it could include something like term limits, as well. It absolutely has to include bringing the Supreme Court under the Code of Conduct for United States Judges, from which it is currently exempt.
The urgency of both filibuster and court reform is hard to overemphasize. Redistricting is happening right now. More and more restrictive voter suppression laws are being enacted in many states. The next federal election, just a little over a year from now, could spell the end of Democratic majorities in both the House and Senate, and the end to Biden’s ability to carry out his agenda. It could also mean Biden is the last Democratic president for the foreseeable future. That’s not an exaggeration at all—it is exactly what the entire Republican Party and the dark money groups propping it up have been fighting tooth and claw for while Democrats politely respect tradition.