Manchin Has Killed the For the People Act. Now What?

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In an op-ed on Sunday, Sen. Joe Manchin of West Virginia dropped a bombshell: Not only would he refuse to kill or limit the filibuster, but he also would not be supporting the For the People Act because, he claimed, he could not vote for an election reform bill that has no bipartisan support.

Democrats were furious. They quickly pointed out how damaging, illogical and ahistorical it was to take such a position. After all, the Fifteenth Amendment guaranteeing the right to vote to all citizens (really, though, just men) without being abridged on the account of race was enacted without a single vote of support from the Democrats in either chamber of Congress at the time. Manchin’s position would have required him to vote against the 15th Amendment.

Anger aside, there remains the very pressing question of, “Now what?” Without even 50 votes to pass the For the People Act in the Senate, a GOP filibuster isn’t even needed to sink it. Majority Leader Schumer’s quest to force vote after vote in the Senate—and have the For the People Act come up as a finale act at the end of June— might wind up proving more embarrassing to the Democrats, who cannot seem to unify their conference around it fully, than to the Republicans who decry it as a partisan bill aimed to cement Democrats in power.

One way Democrats win, of course, is by expanding the voting franchise, especially to racial minorities, an effort that traditionally has benefited the party. The fact that racial minorities, particularly African Americans and more recently Asian Americans, have lined up behind the Democrats is of course also a function of the Republican party’s own racial strategy of courting Southern white voters as well as its more recent and alarming turn to Trumpism. Conversely, one way Republicans win elections these days is to limit that same franchise by passing voter suppression laws and by heavily gerrymandering districts in states they control.

The For the People Act would greatly expand voter registration, early voting, and mail-in voting while limiting the role of money in campaigns and appointing independent commissions to redistrict. The gerrymander reform alone would likely put the GOP into a permanent minority position given how many seats the GOP holds only because of the way the districts are drawn. It also would have undone much of the damage of the voter suppression laws that have now passed in Florida, Texas, Iowa and Georgia, especially with respect to early and mail-in voting.

Senator Manchin does support, however, the renewal of the John Lewis Voting Rights Act, at least in some form. He and Republican Senator Lisa Murkowski penned a letter calling on their colleagues to reauthorize it. While far more limited in scope than the For the People Act, the Voting Rights Act reauthorization would restore critical federal oversight over election law changes through a process called “pre-clearance.” That process once existed within Section 5 of the Act, but John Roberts’s Supreme Court gutted that in 2013 in the Shelby County case, essentially throwing the responsibility back to Congress to come up with a system that doesn’t permanently saddle particular states (meaning, Southern, former Confederate one) with onerous federal supervision. 

Manchin and Murkowski’s idea is to require pre-clearance by the federal government for any change to voting rules or procedures by a state or jurisdiction in order to guarantee that it doesn’t run afoul of constitutional guarantees of equal protection and due process. Because it treats states equally, it might actually survive review by SCOTUS should it be challenged as expected. The main questions then are 1) could they achieve a filibuster-proof majority of support, meaning nine more GOP senators, and 2) could it be applied retroactively to the many bills already enacted? 

When the Voting Rights Act came up for renewal in 2006, it was reauthorized by an overwhelming majority in the House and unanimously in the Senate. That it might not even get 10 senate votes from the GOP today, even if the focus were taken off certain states and transformed into a general process for pre-clearance for all states and jurisdictions, speaks volumes about how far to the right the GOP has moved to preserve its power. Manchin and Murkowski might be able to convince Sens. Collins, Romney and perhaps Toomey to get on board, but they would be struggling to find six more.

As for retroactivity, the Act could in theory empower the Civil Rights Division of the Justice Department to review all voting laws passed by a certain date (say, since the election) to ascertain their constitutionality and to empower the Department to move to enjoin and further review those that do not. With the newly appointed head of the Division, Kristen Clarke, holding extensive experience in the field of Voting Rights, having served as the president of the Lawyers’ Committee on Civil Rights Under Law, the Department could immediately begin to address the most egregious of violations first, say in Texas and Georgia. (It is notable that Clarke’s nomination barely got through a divided Senate, with Sen. Susan Collins the lone vote from the Republicans, so their appetite for her leading this charge does not seem strong.)

At the end of the day, Manchin’s far more modest voting reform proposal via the John Lewis Voting Rights Act at least has a chance of passing, though given that it might undo the very voter suppression bills for which Trump and his supporters have pressed since the election, those chances grow lower by the day. Perhaps the Democrats should now lean on Manchin to clean up the mess he has made by insisting he cobble together the Republican votes he claims still exists. By forcing him to put himself through the process of fighting for and failing to win even “10 good senators” to his cause, Manchin might finally wake up from his pipe-dream of bipartisanship.