Moderation no virtue in voting rights fight

Moderation no virtue in voting rights fight
© Greg Nash

The fate of American democracy rests in the hands of Sens. Joe ManchinJoe ManchinManchin lays down demands for child tax credit: report Democrats want to bolster working women, but face tortuous choices Buttigieg says delay in climate action will cost lives amid reports of Manchin roadblock MORE (D-W.Va.) and Kyrsten SinemaKyrsten SinemaManchin lays down demands for child tax credit: report Buttigieg says delay in climate action will cost lives amid reports of Manchin roadblock Virginia race looms as dark cloud over Biden's agenda  MORE (D-Ariz.).

Developments last week add urgency to the call for reforming the filibuster by carving an exception for voting rights legislation. Without such reform, efforts to pass crucial national voting rights legislation (the For the People Act) are doomed. The best way to protect voting rights, ensure election integrity and prevent Trumpist Republicans from rigging future presidential elections is to pass that legislation.

Senate Democratic majority leader Chuck SchumerChuck SchumerBiden's Supreme Court commission ends not with a bang but a whimper Hispanic organizations call for Latino climate justice in reconciliation Senate to vote next week on Freedom to Vote Act MORE (D-N.Y.) promises that when the Senate returns from its August recess, he will make passage of voting rights legislation the first order of business. It can only pass if the filibuster is changed.

ADVERTISEMENT

Manchin and Sinema need to join with other Democratic senators and put the protection of the system of democratic governance above the preservation of senatorial prerogative and procedure. They need to understand that the effort to build bridges to Republicans in the name of political moderation has its limits.

Manchin and Sinema hold out the vain hope that Republicans in the Senate will undergo a sudden conversion and renounce their previously displayed ruthlessness in the pursuit of their partisan interests. They elevate a fantasy of bipartisanship over the need for national action to protect the rights of the voters to participate in free, fair and honest elections.

Manchin says that he refuses to reform the filibuster in order to avoid turning voting rights into a partisan issue. He claims that “Congressional action on federal voting rights legislation must be the result of both Democrats and Republicans coming together to find a pathway forward or we risk further dividing and destroying the republic we swore to protect and defend as elected officials.”

This is a noble aspiration, but it has no grounding in the reality of what happened in the aftermath of the 2020 presidential election and what is happening in Republican controlled states across the country. Just last week, when Schumer asked for unanimous consent to allow consideration of three separate voting rights bills, Republican Sen. Ted CruzRafael (Ted) Edward CruzThe Memo: Conservatives change their tune on big government The CDC's Title 42 order fuels racism and undermines public health Ocasio-Cortez goes indoor skydiving for her birthday MORE (R-Texas) objected to each of them.

Sinema is a co-sponsor of The For the People Act, yet she embraces magical thinking in talking about the U.S. Senate — like Manchin, she refuses to consider any change in the filibuster. 

“When you have a place that’s broken and not working, and many would say that’s the Senate today,” Sinema suggests, “I don’t think the solution is to erode the rules. I think the solution is for senators to change their behavior and begin to work together, which is what the country wants us to do.”

Change behavior? What evidence is there to suggest that Republicans will change their behavior?

“The filibuster,” Sinema wrote in a June Washington Post op-ed, “compels moderation and helps protect the country from wild swings between opposing policy poles. 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?”

Moderation? How exactly has the filibuster compelled moderation?

Sinema says ending the filibuster will open the door for further assaults on democracy when Republicans once again take power in the Senate.

ADVERTISEMENT

But Republicans have shown reverence for the rules only when they want to accomplish a partisan end.

New revelations about former President TrumpDonald TrumpRobert Gates says 'extreme polarization' is the greatest threat to US democracy Cassidy says he won't vote for Trump if he runs in 2024 Schiff says holding Bannon in criminal contempt 'a way of getting people's attention' MORE’s determined efforts to pull off a coup d’etat only add urgency to this moment and the need for federal legislation to protect the vote. They show the lengths to which the former president and some of his supporters were willing to go to hang onto power.

We recently learned that the former president apparently worked with a mid-level Justice Department official, Jeffrey Clark, then the acting head of the civil division, on plans to manipulate the Georgia election results. Clark reportedly drafted a five-page letter to Georgia Gov. Brian KempBrian KempAbrams targets Black churchgoers during campaign stops for McAuliffe in Virginia Arbery murder trial set to begin this week Stacey Abrams to campaign for McAuliffe in Virginia MORE and state legislative leaders, claiming that the department was “investigating various irregularities” in the presidential contest and saying — falsely — that it had “identified significant concerns that may have impacted the outcome of the election.”

Others in the Justice Department prevented this letter from being sent, but its chilling contents recommended that the state legislature “convene in special session so that its legislators are in a position to take additional testimony, receive new evidence, and deliberate on the matter.” Clark suggested that an alternative slate of electors — that is, electors for Trump — might be accepted by the Congress when it convened on Jan. 6 to tally the certified electoral votes.

What almost happened in Georgia could be staring us in the face in future elections.

Last week, ABC News released the results of a new study of the recent spate of election laws that have been passed by Republican-controlled legislatures across the country. That study found that nine states, including battlegrounds like Georgia and Arizona, have enacted laws that will allow partisan interference in the administration of elections and the counting of votes starting with the 2022 election.

Those laws have diminished secretaries of states' authority over elections and shifted aspects of election administration to highly partisan bodies, such as state legislators themselves.

What more evidence do we need that passing the For the People Act is necessary if democracy is to be preserved?

As Sens. Manchin and Sinema take advantage of the respite from their legislative duties, they should recall the admonition of 1964 Republican presidential nominee and former senator from Arizona Barry Goldwater that “Moderation in pursuit of justice is no virtue.”

Austin Sarat is the William Nelson Cromwell Professor Jurisprudence and Political Science at Amherst College. He is author of numerous books on America's death penalty, including "Gruesome Spectacles: Botched Executions and America's Death Penalty." Follow him on Twitter @ljstprof.