The sometimes heated debate in the Senate this week repeated what is now a major taking point for President Joe Biden and others in favor of curtailing the filibuster. As repeated last night by President Biden, democrats are arguing that blocking the vote on the federalization of elections is not just threatening democracy but hypocritical by Republicans. On Fox News, White House Press Secretary Jen Psaki repeated the same point. The issue was also raised in the tense exchange between Sen. Jon Ossoff (D-Ga.) and Sen. Susan Collins (R-Maine) over her prior vote in favor of the Voting Rights Act. The argument is that these members are hypocrites for previously voting in favor of that bill while supporting the filibuster now. It is time for a reality check. The argument is based on erroneous claims about the underlying bills and the prior rulings of the Supreme Court.
As a threshold matter, advocates often lump together both bills in the debate over filibuster to make this point. In truth, one bill is an unprecedented federalization of election rules. Voting in favor of the earlier Voting Rights Act is largely immaterial to how you would view that bill. Yet, Psaki particularly has insisted that filibustering the bill is inexplicable given the earlier vote. That is what we can call “filibluster.”
Now on to the specific Voting Rights Act changes and the prior Supreme Court vote. Many advocates are espousing the same point raised in Mother Jones in a column titled “Republicans Once Supported the Voting Rights Act. Today, They Voted Against Its Restoration.” It is a view repeatedly made by Psaki, including this morning on Fox when she declared “I will say that a lot of Republicans in the past, 16 who are still in the Senate today, have supported the protection of voting rights in the past. So his question is: why wouldn’t this be a bipartisan effort?”
In addressing this argument, it is important to be specific over what would be “restored” in the Voting Rights Act. If one were to take the claims on the floor at face value, it would seem that, since the decision in 2013, there has been a void of protections for minority voters. That is almost a decade ago.
In reality, there are ample protections for minority voters and litigation has continued over changes that impact minority groups. In Shelby County v. Holder, 570 U.S. 529 (2013), the Court struck down Section 4(b), which subjects certain states to pre-clearance review based on their histories of discrimination. It did not make discrimination lawful or, in any way, limit access to the courts. It concerned only pre-clearance review.
There are good-faith arguments that the pre-clearance review is an important component of the Act to avoid barriers before they are imposed on voters. However, laws can still be challenged before elections as discriminatory. The decision in Shelby has not returned the country to the “Bull Connor” or “Jim Crow” period that President Biden repeatedly references.
The issue raised by the White House and Ossoff is that Collins and others voted in 2006 for the reauthorization of the Act. That was seven years before the landmark decision by the Supreme Court. The John Lewis Voting Rights Advancement Act does seek to restore pre-clearance requirements but it does more than that. It is not simply the restoration of the 2006 bill provisions. Moreover, some members can legitimately view the matter differently after the ruling in Shelby County.
Moreover, the bill goes beyond the prior bill to negate the impact of the 2021 ruling in Brnovich v. Democratic National Committee. That 6-3 decision upheld Arizona’s ban on ballot harvesting or collection and its ban on out-of-precinct voting. For those opposing the federalization of election laws, there is a good-faith basis for opposing such legislation (even if you would not support such bans in your own state).
One can still have disagreements over the merits of such election laws or the filibuster as a long-standing protection in the Senate. However, the continued referral in the media to the prior votes on the Voting Rights Act and its “restoration” are clearly misleading. There was a time when such arguments were considered beneath a senator on the floor. Indeed, that is why Democratic Sen. Daniel Moynihan famously stressed that “everyone is entitled to his own opinion, but not his own facts.”