Senator Joe Manchin (D-WV) has been a never-ending source of frustration for his fellow Democrats. He clings to bipartisan dreams that seem like fairy tales in a world where Republicans are beheading their own leaders for recognizing that President Joe Biden won the 2020 election. And his loyalty to the filibuster could doom most of his party's legislative agenda.
However, on Wednesday Manchin proposed a solution to the congressional impasse on voting rights legislation, which could be even more aggressive than a parallel proposal by the Democratic leaders.
Under the Voting Rights Act, states and local governments with a history of racist voting were required to “pre-clear” new voting rules with officials in Washington, DC. The idea was to catch rules that disenfranchise color voters before they go into effect and block those laws before they can prevent a single voter from casting a ballot. And while Republican support for preclearance has waned in recent years, the electoral law has had strong bilateral support for many decades.
The Supreme Court has effectively neutralized the preclearance in Shelby County against Holder (2013) in a party line with all Republicans of the Court in a majority and all Democrats in contradiction. Shelby County is a major reason Republicans in states like Arizona, Georgia, and Texas can now pass laws that seem to serve no other purpose than to make it harder to vote.
Most of the Democrats in Congress have teamed up behind a bill known as the John Lewis Voting Rights Advancement Act, which aims to restore preclearance in a handful of states while also facilitating preclearance for new states and local governments attempting to disenfranchise racial minorities.
But Manchin suggested Wednesday that Congress should make a much bolder attempt to push Shelby County back. In an interview with ABC News, Manchin suggested applying the John Lewis Act "to all 50 states and territories". Therefore, all states, not just the few with the worst racial records, would need to submit new voting rules to the federal exam to ensure that the new rule does not target color voters.
The John Lewis Act is just one of two major suffrage laws that the Democrats are trying to pass and that many Democrats see as essential to protecting American democracy. The other bill is the For the People Act, a comprehensive bill which, among other things, aims to provide campaign finance, expand early voting, establish independent redistribution commissions, and legally require presidents and vice-presidents to disclose their tax returns.
Realistically, however, the For the People Act's path to the passage is becoming increasingly narrow. Manchin's support for the John Lewis Act, therefore, suggests that restoring a resilient preclearance regime could be the Democrats' best hope of passing a major voting bill this year.
While a revived suffrage bill would impose some restrictions on racial migration, it is unlikely that state lawmakers will be prevented from creating legislative cards that will benefit their party. As Nicholas Stephanopoulos, a Harvard law professor and leading gerrymandering expert, said on Twitter, "almost every southern state" was able to draw gerrymandered cards in the 2010 redistribution cycle, including those subject to pre-screening.
Preclearance won't kill the Electoral College and Senate Twin Dragons, either, which often allows Republicans to take over the White House and Senate, even when most voters prefer to be ruled by Democrats.
But Manchin's proposal would go a long way towards halting the latest round of voter suppression laws. And it would make the suffrage law stronger than ever, applying an effective tool that was originally used only for a handful of states across the nation.
Preclearance in a nutshell
Prior to Shelby County, nine states – Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia – had been preempted nationwide, as had some counties and local townships spread across six other states.
These jurisdictions had to submit new voting rules to the Department of Justice or a federal court in Washington, DC. The new regulation would only come into effect after it had been reviewed by either the DOJ or the competent court, and it would be permanently blocked if it had either the "purpose" or the "effect of denying or curtailing the right to vote Race or color. "
Since Preclearance blocked laws that restricted the "right to vote" for color voters, this is potentially a very effective safeguard against Republican-backed laws targeting Democratic voters. In the 2020 election, 90 percent of African Americans and 63 percent of Latinos voted for President Biden, according to data analytics group Catalist, and both groups preferred Democrats by an even greater margin in other recent elections. As a result, laws aimed at disenfranchising Democrats often have a disproportionate impact on voters in Black and Latin America.
One of the main benefits of preclearance is that racist voting rules are blocked before they can go into effect. While proxies can and do assault efforts to disenfranchise voters through ordinary litigation, courts are often very slow institutions. It can take years for a plaintiff to receive a court order blocking a racist law, and the state may have held multiple elections under that law before that court order goes into effect.
Before Shelby County canceled one of its most effective provisions, the Voting Rights Act was one of the most effective civil rights laws in American history. In 1965, the year President Lyndon Johnson signed the suffrage bill, fewer than 7 percent of Mississippi black voters were eligible to vote. Just two years after the law went into effect, the black enrollment rate in Mississippi was nearly 60 percent.
The leading Democratic proposal to restore preclearance, the John Lewis Act, would immediately impose preclearance on states or local governments that have "committed 15 or more violations of voting rights in the state" or jurisdictions with 10 or more additional violations in the past 25 calendar years, " at least one of which was committed by the state itself ".
It also strengthens another provision of the Voting Law that allows new states and locations to be pre-screened. Under current law, courts can order new jurisdictions to pre-clarify their electoral rules if the jurisdiction “violates the fourteenth or fifteenth amendment”. This is a fairly weak tool as a plaintiff usually has to prove that the legislature acted with racist intent in order to prove a violation of these amendments.
In contrast, the John Lewis Act allows a court to review new jurisdictions if those jurisdictions “violate the 14th or 15th Amendment, violate this law, or violate any federal law that causes voting discrimination forbids committing of race, skin color or belonging to a language minority group. “This new language means, among other things, that a jurisdiction could be subject to prior investigation if it enacts law that“ results in a United States citizen's right to vote on race or color basis being denied or restricted ”if the plaintiffs contesting this law cannot prove racist intent.
In any case, Manchin's proposal would dispense with this complicated process of determining which states as a whole should and should not be subject to preliminary investigation. It would simply require all states to submit new electoral rules to the federal examination.
Manchin's proposal is more likely to outlive the Supreme Court
One problem with the leading version of the John Lewis Act is that it can raise the same concerns that led the Conservative majority in the Supreme Court to put down the preclearance in Shelby County.
Shelby County did not believe that the Constitution absolutely prohibited preclearance. Rather, Shelby County relied on the novel proposal that "all states enjoy equal sovereignty" – a proposal that is not mentioned in the constitution.
Preclearance, as it existed in 2013, “only applied to nine states (and several additional counties)”. As Chief Justice John Roberts wrote for his court, this meant: “While a state waits months or years and spends funds on the implementation of a legally enacted law, its neighbor can usually put the same law into effect immediately through the normal legislative process. "
While the Court concluded that such a departure from its reinvented prohibition on treating different states differently could be justified by "exceptional conditions" – such as the widespread electoral disenfranchisement that characterized Jim Crow – Roberts wrote, that the kind of "ubiquitous", "flagrant" was The widespread and widespread discrimination that marked the Jim Crow era no longer existed in 2013. Hence, Congress was not entitled to impose an onerous regime on some states but not on others.
Shelby County is a confusing decision, and it contains language that suggests that Congress could create a new pre-clarification regime that will only apply to some states, as long as it decides which states should be subject to pre-clarification by relying more on " Current Conditions ”rather than looking at a more dated record of racist practices. The John Lewis Act is an attempt to update the Suffrage Act by only giving preliminary clarification to states that have committed misconduct in the past 25 years.
Perhaps the Supreme Court will take this approach – although it is risky considering the current court is far more conservative than the one that ruled Shelby County. In contrast, Manchin's approach avoids this problem altogether. If Shelby County were concerned about federal laws penalizing some states but not others, Manchin would impose exactly the same burden on all 50 states.
With six Conservative Republicans on the Supreme Court, there is no guarantee that Manchin's approach would work. However, given Shelby County's focus on "equal sovereignty" between states, it has a better chance of prevailing.
Two big problems with Manchin's approach
A nationwide preclearance regime would be a very big deal. It would not simply block many new attempts to disenfranchise voters. It could also weaken several existing laws designed to prevent people from casting a vote.
For example, the most disturbing provision of a recent electoral law for Georgia is a provision that allows the state's Republican-controlled legislature to effectively take over the county electoral bodies – bodies that can disqualify voters and close polling stations. However, if Georgia were subject to preliminary clarification, it may need to seek federal approval before it could initiate such a takeover. And if a Republican-controlled electoral board tried to implement a new policy or shut down a particular district, that decision would also be subject to preliminary investigation.
However, in his interview with ABC News, Manchin appeared to suggest that his 50-state preliminary clarification proposal should be passed as an alternative to many other democratic voting ideas.
The John Lewis Act is one of two major voting laws that the democratic leadership advocates. The other is the For the People Act, a nearly 800-page bill that reads like a wish list put together by proponents of voting rights to shut down almost every single tactic used by state lawmakers seeking to restrict the right to vote .
Manchin is very cold in the For the People Act. "Given the tension we have now, how on earth could you allow a voting bill to restructure America's voting on a partisan line?" He asked at one point, warning that a major overhaul of federal electoral law could lead to more "anarchy" in a party line vote, like the January 6th coup in the US Capitol.
While the expansive For the People Act contains a number of provisions that are likely not necessary to uphold American democracy, the United States will most likely survive as a Democratic republic if, for example, presidential candidates are not required to disclose 10 years worth of tax returns – them contain the Democratic Party's most aggressive proposal to combat partisan gerrymandering. The bill would require all states to set up independent redistribution commissions to sign Congressional districts.
The Democrats spent most of the last decade gaining a foothold in the House of Representatives, not least because of the cards in Congress attempting to exclude them from power. In 2012, Democratic House candidates received nearly 1.4 million more votes than their Republican counterparts, but Republicans maintained a comfortable majority in the House. In 2020, the Democratic House candidates won the national referendum by 3.1 percentage points, but hardly retained their house majority.
If Manchin is unwilling to support protective measures against gerrymandering, Democrats can look forward to another decade of fighting Republican House candidates with one hand behind their backs. (He also shied away from supporting other measures that would give Democrats more representation, such as DC statehood.)
The second problem with Manchin's approach is even more fundamental. In his interview with ABC News, he claimed that a nationwide preclearance regime could be enacted on a "bipartisan" basis and wrote that there was "no circumstance" under which he would be willing to weaken or eliminate the filibuster, for the 60 votes required, most of the laws are passed.
Manchin may be one of the few people on the planet who actually believe that voting laws of any kind could get 10 Republican votes in the Senate, which would be what it takes to break a filibuster. After all, it was the Supreme Court Republicans who neutralized the preclearance in Shelby County. And Senate minority leader Mitch McConnell recently admitted that "one hundred percent of my focus is on the (Biden) government," which supports the For the People Act and the John Lewis Act.
There was a time when voting rights were supported by both parties. President Ronald Reagan signed an important amendment to the Suffrage Bill (over the objection of a young Justice Department attorney named John Roberts), and President George W. Bush signed bills that would extend the pre-settlement regime for another 25 years.
But the era of bipartisan support for voting rights seems to be over. Just ask the 147 Republicans in Congress who voted to overthrow the 2020 elections.
In other words, Manchin will likely have to decide whether it's more about allowing the Senate Republican minority to block laws or protecting voting rights.