After months of fighting, the U.S. Senate plans to vote on an ambitious Democratic bill on voting rights this week.
The bill is already doomed. Senate rules require 60 votes to move a majority of bills to final approval; he only has 50, all Democrats, against 50 Republicans.
The debate will offer a lot of angry rhetoric and finger signals. It will give Democrats new opportunities to complain about their two most conservative senators, Sen. Joe Manchin III of West Virginia and Sen. Kyrsten Sinema of Arizona, who refused to change the rules even for the sake of voting rights.
But this anger will not solve the problem: our electoral system is still in danger.
Therefore, Congress should try a different approach: less ambitious, more bipartisan.
At least three measures that will not pass in the Senate this week have bipartisan support, at least in principle. It’s still worth a try.
The first and most urgent is to protect against “electoral subversion”: attempts to change the outcome after the vote.
That should start by fixing the Electoral Count Act, the 1877 law whose darkness then-President Trump tried to exploit to nullify Joe Biden’s victory.
Then-Vice President Mike Pence frustrated Trump by denying his demand to rule out some of Biden’s election votes. But the outcome of an election should not depend on a single man. The law should make it clearer that the vice president has no power to reject electoral votes.
Trump also tried to persuade Republican state lawmakers in Pennsylvania, Michigan and other states that Biden won to override his voters and nominate Republican voters. Like Pence, lawmakers refused. But the law also needs to be clearer in this regard: state politicians can write election laws, but they cannot change the outcome after election day.
“Electoral Count Act reform is the place to start,” Edward B. Foley, an election law scholar at Ohio State University, told me. “Electoral subversion is an existential issue for democracy.”
Senators from both parties are already talking about resolving the law. Senator Angus King, an independent from Maine, and Senator Susan Collins, a Republican from Maine, are trying to get bipartisan support. Manchin, Sinema, and Utah Republican Sen. Mitt Romney have expressed interest. Interestingly, Republican Senate Leader Mitch McConnell of Kentucky recently said he would also consider changing the law. Some Democrats are hesitant to say so, but it is certainly worth finding out.
A second issue also falls into the category of electoral subversion: protecting state and local election officials from threats and intimidation.
Nationwide, election administrators have reported receiving a large number of threats, often from their families. (Reuters has compiled a list of more than 800 such incidents.) Many of the messages appear to have come from angry Trump supporters for state officials to refuse to confirm their unfounded allegations of election fraud.
Federal law makes it a crime to intimidate voters, but it does not explicitly cover threats against officials who count votes.
Congress can fix that, starting with increased criminal sanctions and more funding. There is nothing partisan about this.
Third, take another look at restoring the full scope of the Voting Rights Act of 1965.
The law, which was passed with bipartisan support, required jurisdictions with a history of racial or ethnic discrimination to seek approval from the Justice Department before changing voting rules. The Supreme Court effectively removed this part of the law in 2013, but left room for Congress to pass an updated version.
Eleven of the 50 Republicans in the Senate today voted in favor of renewing the law as recently as in 2006. Only one, Sen. Lisa Murkowski of Alaska, publicly supported the renewal that Democrats tried to advance this year. but this was one more than any other proposal. . A new version, if it started with bipartisan negotiations, could get the support of enough Republican senators to approve it.
This may also be President Biden’s strategy; when he spoke with Democratic senators last week, he focused on the voting rights bill.
“Like any other important civil rights bill that was introduced, if we get lost the first time, we come back and try a second time,” Biden told reporters. “We got lost this time.”
There are other potentially bipartisan measures available: a federal requirement that states and counties use paper ballots to protect themselves from fraud; criminal sanctions for altering election results; federal standards for election audits, to avoid the kind of circus that occurred in Arizona last year.
But the starting point, in all cases, must be bipartisan.
“It’s time to start all over again from scratch,” Foley said. “The process must be really mutual and bilateral. It is not useful to start with a wish list for a match. That was the fault of the approach that had just failed. “
And time is of the essence.
“The reform will not take place unless it happens before the midterm elections,” Foley said. “It has to go under the veil of ignorance: the fact that we don’t know who will lead Congress in 2023 or 2025.” In this way, neither party knows exactly who will benefit from the reforms; they will have to rely on good judgment and self-interest.
It will be tempting for all sides to spend the next week scoring partisan points and handing out the blame. But our elections have yet to be protected. Better to get away from the wreckage and get back to work.
