After Democrats’ historic defeat on voting rights, what happens next?

·7 min read
<span>Photograph: Michael Reynolds/EPA</span>
Photograph: Michael Reynolds/EPA

In an extremely bruising loss for Biden, Republicans used the filibuster to block the sweeping bill from passing

For a little over a year, America has faced a democratic crisis unlike any it has seen in recent history.

As Republicans have spread lies about the 2020 presidential election, confidence in it remains staggeringly low and about 1 in 3 Americans now believe Joe Biden was not legitimately elected. Republicans who claim the election was stolen are trying to grab key election administration roles, prompting unprecedented alarm that a future election could be overturned.

And after an election with record participation, Republicans have pushed a wave of new laws making it harder to vote, placing new restrictions on longstanding policies that went unquestioned for years. “We’re facing the most significant test of our democracy since the civil war,” Biden said in July.

On Wednesday night, Democrats’ biggest hope of blunting that threat failed in a historic defeat as Republicans used the filibuster – a technical senate rule that requires 60 votes to advance most legislation – to block a sweeping voting rights bill from passing.

For months Democrats had offered the legislation as an antidote to the anti-democratic sickness that is plaguing America. The bill would have been the most dramatic expansion of the right to vote in a generation. It would have outlawed partisan gerrymandering, protected election officials from partisan interference, required early voting and same-day registration, and restore the pre-clearance provision at the heart of the Voting Rights Act.

Politically, the loss was extremely bruising for Biden, who has spent an enormous amount of his political capital in recent weeks only to end up on the losing side. And – even worse – though the measure was blocked by 50 Republicans who refused to even negotiate around it, the moment was one of clear weakness for Democrats. The party has control of both chambers in Congress yet appeared helpless as two of its conservative senators joined with Republicans to preserve the filibuster and doom the legislation.

But the deeper stakes of the failure go far beyond politics.

It was a moment in which an American government system, crippled by deep partisanship and an arcane rule, turned its back on a rising threat of a dangerous anti-democratic tide. It’s a moment that future historians will be mystified by, a group of scholars warned in November.

“To lose our democracy but preserve the filibuster in its current form – in which a minority can block popular legislation without even having to hold the floor – would be a short-sighted blunder that future historians will forever puzzle over,” they wrote.

What happens next isn’t exactly clear.

Biden suggested the 2022 elections could be illegitimate absent congressional action, a claim the White House quickly walked back on Thursday. “He was explaining that the results would be illegitimate if states do what the former president asked them to do after the 2020 election: toss out ballots and overturn results after the fact,” Jen Psaki, the White House press secretary, tweeted.

Cliff Albright, a co-founder of the group Black Voters Matter, said the vote Wednesday was “disappointing”, but said that his group would continue to push for significant voting reforms. He noted how successful pressure from his group and others had been in getting Biden and other Democrats to support changing the filibuster and pointed out that historic past campaigns to pass the Civil Rights Act and Voting Rights Act required continued pushing after setbacks.

“Those debates and those votes were important, to put them on record. So that’s a victory for movement,” he said. “I don’t think this moment will be forgotten.”

Tiffany Muller, the president and executive director of Let America Vote/End Citizens United, similarly pledged her group would “regroup” and “keep going” to push voting reforms.

“We’re going to take that fight to the states. And we’re going to continue to elect champions down the ballot who will prioritize our democracy, and we’re gonna make sure that we’ll hold Republicans accountable at the ballot box in 2022,” she said. “There is no doubt about it that last night’s vote makes the best option on the federal level not available to us anymore. But we’re still gonna look at ‘are there ways to get other pieces of legislation passed on the federal level?’”

Politically, Democrats have pledged to fight on.

Previewing what could be a midterm message to frustrated voters on Thursday, Jaime Harrison, the chair of the Democratic National Committee, said the failure in the Senate was evidence for why there needed to be more Democrats in the US Senate.

“We can send more Democrats to the US Senate and give President Biden and Vice-president Harris the votes they need to pass voting rights legislation. We can show those who stand in the way of voting rights that their actions have consequences,” he said in a statement.

Senator Jeff Merkley, an Oregon Democrat who laid out a plan for a talking filibuster, said in a statement he would continue to push to reform the rule.

“We fell short. But this is not the end of the story,” he said. “When I came to the Senate, 48 senators voting to change the filibuster seemed like a distant dream, something that would never happen. We’re not there yet, but we’re closer than we’ve ever been.”

With broad voting reform stalled, there appears to be some bipartisan appetite in congress for changing the Electoral Count Act, a confusing 19th century law that sets out the procedures for counting electoral votes. Trump’s legal team planned to use ambiguities in the law to try and overturn the election, and election scholars for years have said that it needs to be fixed. “There’s a good win there,” Manchin said after the vote on Wednesday. “I mean, my goodness, that’s what caused the insurrection.”

But Democrats have rejected fixing the law alone as an acceptable solution, saying it’s unacceptable to fix the way votes are counted if the rules of voting are rigged. It would be a bit like deciding to fix an unreliable scoreboard in a game of basketball where the rules are rigged against one team. Muller also said she was skeptical of how sincere Mitch McConnell, the Republican leader, was in his wish to change the law.

“We are supportive of reforming the act. But that’s not going to be nearly enough to protect voters in all of these states. It does nothing to fight back against these voter suppression laws,” she said.

Meanwhile, congressional inaction is also likely to encourage those seeking to undermine democracy to be even more aggressive, Sherrilyn Ifill, the director-counsel of the NAACP Legal Defense and Educational Fund, told Congress on Thursday.

“In 2021, we saw a repeat of history – a steady drip of old poison in new bottles. Whereas in a bygone era, discriminatory intent in voting restrictions was dressed up in ideals such as securing a more informed and invested electorate, the new justification is fighting imaginary voter fraud, a phantom conjured only to attack,” she said, according to prepared remarks.

“With no pushback from Congress, those intent on subverting the next election by continuing to raise doubts about 2020 are becoming more brazen, not less,” she added.

Eric Foner, a historian at Columbia who studies the Reconstruction era in US history, said it was difficult to predict how future historians would remember this moment. He said there were parallel moments in history when congressional efforts to protect voting rights were thwarted by the filibuster, such as in 1890 when federal voting protections backed by Henry Cabot Lodge were defeated after a filibuster in the senate.

“​​Historically, the filibuster has been used for one reason: that is to prevent legislation supporting the rights of Black people,” he said. “Let’s not try to glorify the filibuster as having any reasonable reason for existence other than allowing a minority to rule over a majority.”