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A new agreement among Senate Democrats to bolster voting rights would enable the Justice Department to halt state legislatures from tampering with voting results after Election Day — and poses a key test for Sen. Joe Manchin’s ongoing reluctance to alter the filibuster.
The provisions are part of a bill released Tuesday by Sen. Amy Klobuchar, D-Minn., and seven other Democrats that was derived from a larger bill but would nonetheless set national standards for a broad set of election practices.
The legislation, the Freedom to Vote Act, was the result of negotiations between Democrats led by Klobuchar and Manchin, D-W.Va., who has now said he will try to get support for the bill from at least 10 Republican senators, which is necessary to overcome a filibuster, the procedural hurdle that requires most major pieces of legislation to receive 60 votes in the Senate.
One of Manchin’s red lines was the need to include voter ID requirements. Voter ID has been at the core of the GOP’s approach to elections for the past 20 years.
“The right to vote is fundamental to our democracy and the Freedom to Vote Act is a step in the right direction towards protecting that right for every American,” Manchin said in a statement. “As elected officials, we also have an obligation to restore people’s faith in our democracy, and I believe that the commonsense provisions in this bill — like flexible voter ID requirements — will do just that.”
The component that would block state legislatures from meddling with election results was not included in a previous bill, which passed in July with 50 Democratic votes but was blocked by all 50 Republicans. Manchin gave the bill his support as a good-faith gesture, but made clear he wanted to see changes made.
That bill would have made it easier for people to vote by mandating 15 days of early voting and no-excuse absentee voting, allowing for same-day voter registration and unlimited ballot collection, and enacting automatic registration for federal elections.
It would also have banned the practice of partisan gerrymandering, in which state legislatures redraw congressional districts in irregular shapes that are designed to give their party an advantage.
The bill introduced on Tuesday still includes many of those provisions but does not have unlimited ballot collection, which is often referred to by critics as “ballot harvesting” because they say it increases the likelihood of abuse and fraud.
Democrats are alarmed by moves in several Republican-controlled state legislatures to reduce access to voting, and also to give local politicians more ability to meddle with election results after all the votes have been cast.
This new legislation would require any state seeking to remove local election officials from their posts to notify the assistant attorney general in the Justice Department's Civil Rights Division. The election officials may also bring their case to the Justice Department.
“The United States may intervene in any administrative or judicial proceeding brought to suspend, remove, or relieve the duties of any local election administrator by a statewide election administrator with respect to the administration of an election for federal office,” the legislation states.
The proposed law would also impose stiff punishments for anyone who attempted to “intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce an election worker.” The penalty would be a fine of up to $500,000 and up to five years in prison.
The legislation provides a long list of what would be considered acceptable identification for voting, including numerous non-photo IDs. The list includes a driver’s license, a student ID from a college or state-accredited high school, a gun license or concealed-carry permit, a Medicare, Medicaid or Social Security card, a hunting or fishing license from a state government, an ID for food stamps, a debit or credit card, and a utility bill.
Marc Elias, a leading attorney for voting rights and Democratic candidates, called the legislation “a surprisingly good voting rights bill.”
“The bill forbids states from requiring notarization or witnesses to vote by mail. It also requires states to count ballots cast by Election Day if they are received up to seven days after the election. It provides for a free postage system for returned ballots, requires states to notify voters whose ballots are rejected due to a signature omission or mismatch and creates an easy way for voters to cure those ballots,” Elias wrote.
But Elias also said that when it comes to the post-Election Day period, there are still a number of things that need to be addressed to protect against partisan meddling with results. “It does not tackle the underlying problems facing our counting and certification process. That will require a much more extensive rewrite of how states conduct post-election tabulation and certification,” Elias wrote, linking to a previous piece he published outlining three proposed fixes.
The key problem for Democrats in trying to pass any voting bill, however, remains the filibuster. And in Washington, no name is more tangled up with the filibuster than Manchin’s.
The Democrat from deep-red West Virginia has, along with fellow moderate Kyrsten Sinema, D-Ariz., spearheaded efforts to preserve the filibuster, much to the chagrin of liberals and progressives who say it is at best outdated and at worst inherently racist.
The subtext of the Klobuchar bill is that if Manchin cannot get 10 Republicans to back it, he will be pulled closer to supporting a weakening of the filibuster, perhaps only to pass a voting rights bill.
Manchin has said previously he would be open to moving to a “talking filibuster,” which would require a senator to sustain a filibuster by maintaining a physical presence on the Senate floor. Currently, any senator can block any legislation by simply informing their colleagues that they wish to filibuster.
Manchin has also indicated he would consider lowering the vote threshold from 60 to 55 to pass legislation, according to reports of a call he conducted with outside groups in July.
Ned Foley, director of the election law program at Ohio State University, said the Democrats are going about this all wrong. He argued on Tuesday that Democrats should go all out to get Republicans on board, or else risk pushing the GOP further down the path of rejecting any election outcome they don’t like.
Foley specifically recommended seeking input from Rep. Liz Cheney, R-Wyo.
“[Senate Democrats], along with House Democrats, should be sitting down with Rep. Liz Cheney and asking her to help them craft a bill that will contain the essential ingredients for protecting America’s representative democracy from an authoritarian takeover. Cheney has proven her commitment to the cause; she’s lost her leadership in the House GOP caucus, and altered the entire trajectory of her career, because of this commitment,” Foley wrote.
However, Foley said, if Manchin and his fellow Democrats are unable to bring Republicans like Cheney into the fold on the issue, Democrats must find a way to pass voting rights legislation or else figure out a way to sidestep the filibuster altogether.
“If Liz Cheney is on board, where are the Senate Republicans who profess to care about saving the republic from an authoritarian subversion of democracy? If there aren’t enough of them, then it’s a truly ‘break the glass’ moment and time to figure out a way to cross the finish line with fewer than 60 votes,” Foley concluded.
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