"What's the interest of the Arizona RNC in keeping, say, the out-of-precinct ballot disqualification rules on the books?" Justice Amy Coney Barrett asked Michael Carvin, the lawyer arguing before the Supreme Court Tuesday on behalf of Arizona Republicans that two of the state's voter suppression laws should be upheld. He answered truthfully: "Because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero-sum game. And every extra vote they get through unlawful interpretation of Section 2 hurts us, it's the difference between winning an election 50-49 and losing an election 51 to 50." What that transcription doesn't include is how Barrett was desperate to cut him off in the middle of that last sentence.
Because there he was, saying the part that the conservative majority of the Supreme Court really doesn't want to be said out loud: if Republicans can't keep people from voting, they can't win, and they are counting on the courts to help them do that. Which the Supreme Court conservative majority is very likely to do. Consensus among those who followed the questioning from the justices is that the discriminatory laws will be upheld, and that voting rights are in for a serious blow. That brings us back to one critical truth for Senate Democrats: it's either voting rights and a functioning democracy (not to mention Democrats being elected in the future) or a preserved filibuster.
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With the House set to pass the For the People Act as soon as Wednesday evening, that simple truth is even more glaring. "What we want to do is clear the air—clear the air of that big, dark money, clear the air of political gerrymandering and clear the air of the voter suppression that is out there," House Speaker Nancy Pelosi told reporters. "[Republicans] know that their issues are losers with the American people. They know that big money and voter suppression is their path to victory, and that's why they're engaged in this."
This bill has massive elections reforms to dismantle barriers to voting, including making registration automatic and expanding and enhancing early voting, vote-by-mail, shortening lines at polls, ending partisan gerrymandering, stopping voter roll purges—striking back at all the voter suppression tactics Republicans have created so they can keep cheating to win. The House is also going to reintroduce and pass the John Lewis Voting Rights Advancement Act to restore the gutted Voting Rights Act.
What the House can't do is rid the most persistent Jim Crow holdover there is: the Senate filibuster. The tactic is so accepted now as a relic of white supremacy and anti-civil rights obstruction that its got a National Georgraphic article detailing how its been used since the Jim Crow era by senators "Intent on keeping the white supremacist status quo of the Jim Crow era." What did the white supremacists filibuster for the past century: "Anti-lynching legislation was filibustered in 1922, 1935, and 1938. Anti-poll-tax legislation was filibustered in 1942, 1944, 1946, 1948, and 1962. Civil rights legislation was filibustered in 1946, 1950, 1957, 1960, 1962, 1964, 1965, 1966, 1968, 1972, and 1975, everything from the Civil Rights Acts to the Voting Rights Act to the Fair Housing Act to the Equal Employment Act."
Since the 1970s, and particularly since 2000, the "stealth" filibuster, where senators don't have to stand and speak for hours on end but can force cloture on bills, requiring 60 votes for the bill to even be considered, have mushroomed. And after 2009? "From 2009 to 2020 (the 111th to 116th Congresses), there were 1,161 cloture motions, 971 votes on cloture, and 778 instances of cloture being invoked." In those years, Republicans have stopped climate change legislation, the DREAM Act, a minimum wage hike, President Obama's 2011 jobs plan, and gun safety legislation, just to name a few.
Now Democratic Sens. Joe Manchin and Kyrsten Sinema are defending that "tradition." Sinema detailed her devotion to the procedure in a recent letter to a constituent, saying keeping it "will result in better, commonsense legislation." Which has happened zero times since Mitch McConnell rose to lead the Republican conference. "Debate on bills should be a bipartisan process that takes into account the views of all Americans, not just those of one political party," she writes. Never mind that the filibuster doesn't require any debate. "Regardless of the party in control of the Senate, respecting the opinions of senators from the minority party will result in better, commonsense legislation." Because the Republican majority under McConnell was known to be so respectful of the minority.
The most insulting, toxic revision of history from Sinema though, is this. "In 1917, the Senate changed its procedures to allow a supermajority, or two-thirds of all voting senators, to bring an end to a filibuster. This is called a cloture vote. Despite adoption of the new cloture vote rule, filibustering remained an effective means of preventing legislation from receiving a vote." Then she leaps to describing further reforms that started in the 1970s. What's missing in her little recitation of filibuster history? Yeah, it’s white supremacist history. She says that she wants to keep the filibuster to "protect what the Senate was designed to be," completely ignoring what the Senate IS and what the Senate has done.
Sinema and Manchin are going to have to mine that racist history of the filibuster, and decide if they want to be lumped in among the white supremacists who are now using it to strip civil and voting rights. Because her colleagues are going to bring it. Sen. Amy Klobuchar, a key sponsor of the For the People Act in the Senate and chair of the Senate Rules Committee says "I would get rid of the filibuster. […] I have favored filibuster reform for a long time and now especially for this critical election bill." That's leadership talking, a committee chair.
"We have a raw exercise of political power going on where people are making it harder to vote and you just can’t let that happen in a democracy because of some old rules in the Senate," she said. Republican efforts in states across the country to suppress voters is "the defining issue of the year," she continued. "We had an insurrection at the Capitol with rioters who were trying to literally dismantle our democracy. The fundamental issue is do people get to vote or not and are we going to make it easy for them to vote or are we going to put up barriers to make it impossible?"
Where are Sinema and Manchin going to stand when they're faced with that reality? When they are forced to vote, as they will be. That choice is going to be made that much more stark when the Trump Supreme Court votes to dismantle what's left of the Voting Rights Act.
