President Biden Will Raise the Stakes on Voting Rights Today. But Is He Playing a Weak Hand?

Photo by Drew Angerer / Getty Images

Today, President Biden will give a major speech in Georgia in support of voting rights legislation, specifically the Freedom to Vote Act and the John Lewis Voting Rights Restoration Act. The former would provide federal standards for elections including allowing same-day, automatic voter registration; protecting mail-in and absentee voting; expanding early voting to two weeks; shielding election workers from attacks; preventing partisan gerrymandering; and making Election Day a national holiday. The latter would restore the power of the Justice Department to pre-approve any change to voting laws to ensure they are not racially discriminatory, undoing much of the damage from the Supreme Court in its 2013 Shelby County decision that effectively gutted Section 5 of that Act.

President Biden is seeking to demonstrate his commitment to voting rights by upping the stakes today in his speech, a portion of which was pre-released to the press. “Will we choose democracy over autocracy, light over shadow, justice over injustice? I know where I stand. I will not yield. I will not flinch,” President Biden will say. “I will defend your right to vote and our democracy against all enemies foreign and domestic. And so the question is, where will the institution of United States Senate stand?”

Sadly, we already know where Republicans are on this. With the possible exception of Lisa Murkowski, the GOP uniformly opposes both bills. Publicly, their stance is that the federal government has no right to regulate the election procedures of the states. But this hasn’t been the case for some time, particularly after the original Voting Rights Act was passed in 1965 to help extend and protect the right to vote guaranteed by the 15th Amendment. The actual reason Republicans oppose the bills is likely pure math: They know if these bills become law, their party will be outvoted and pushed further from power as more Americans are given freer access to the polls and Congressional district lines are drawn more fairly.

But because of the filibuster rule, which currently requires 60 votes in the Senate to end debate on a bill, both bills are stuck in that chamber, unable to advance unless a change to the rule occurs. President Biden, who had been reluctant to have Democrats go it alone on the bills, recently gave an interview to ABC News in which he stated he would support such a change if necessary, but only as a last resort. Others including Sens. Mark Warner (D-VA) and Amy Klobuchar (D-MN) who hadn’t previously publicly announced their support for a filibuster carve out for voting rights also declared a change of heart in 2021.

Their view, however, is not currently shared by all Democrats. In addition to Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) who have publicly stated their opposition to a carve out in the filibuster rule, a handful of others—including Sens. Jon Tester (D-MT), Mark Kelly (D-AZ), Chris Coons (D-DE) and Jeanne Shaheen (D-NH)—reportedly have not yet committed themselves to a rule change. The landscape is tricky because many of these senators were on record opposing the elimination of the filibuster when it was Democrats who needed it to stop Republican legislation, and some fear that “going nuclear” will make it impossible to be an effective opposition some day later when Democrats are in the minority. That said, many now see voting rights as an existential question, one of fundamental fairness, and many believe it’s time to show your hand. Indeed, one of the little discussed reasons Majority Leader Schumer is pushing for a vote on the filibuster rule is to force his party members to take a public stand rather than remain cagey.

Exceptions to the filibuster rule are not entirely uncommon. Huge ones exist already for budgetary bills through a process known as reconciliation. A recent waiver occurred to raise the debt ceiling limit. Cabinet and judicial nominees can no longer be filibustered after both sides made carve outs to the rule, which is in part why we have such a conservative Supreme Court but also why President Biden was able to fill his administration with such a diverse set of officials. 

Instead of a specific carve out for, say, constitutionally protected rights, Democrats may opt instead for a procedural change to the rule, e.g. requiring that a “talking” filibuster actually be maintained (just as it was in the 50s and 60s when Southern conservatives tried to block civil rights laws), or that 41 senators actually must be present to vote to keep debate open. Sen. Manchin has indicated that he might support a return of the filibuster to its more traditional form, in which those in opposition to a bill must actually show up and voice their opposition. For now, though, he is keeping his final decision close per usual.

This may be the last opportunity for some time for Democrats to pass voting rights, with control of both chambers of Congress and the White House by a single party a relative rarity in politics. The political climate is also quite unprecedented. When the John Lewis Voting Rights Act came up for renewal in 2006, the Senate voted 98-0 in favor of it. So much has changed within the Republican Party since then, however, that today the Act cannot even summon enough support for an up-or-down vote. Former President Trump’s Big Lie about a stolen 2020 election is also fueling a wave of “election security” concerns, providing a perfect pretext for a withering barrage of voter suppression laws in GOP-controlled states, all intended to ensconce permanent minority rule. 

The White House and Senate Majority Leader Schumer are playing at a handicap, with 50 official Democratic votes in the Senate from the point of view of the media and the electorate, but in reality only 48 or fewer they are able to count on for most legislation. That handicap renders the chance of a significant carve out to the filibuster rule quite small. Most voting rights advocates understand this but remain deeply frustrated. 

“We don’t need another speech,” said Cliff Albright, executive director of the Black Voters Matter Fund. “What we need is action. What we need is a plan.”