In an address at the Atlanta University Center Consortium on Tuesday, President Joe Biden cast the Congressional debate over new voting rights legislation as a battle “to protect the heart and soul of our democracy.”
“I know the majority of the world leaders — the good and the bad ones, adversaries and allies alike,” Biden said. “They’re watching American democracy and seeing whether we can meet this moment.”
If it sounds familiar, it’s because that’s what Democrats were saying a year ago.
Congressional Democrats spent 2021 making the case that American democracy needed a “last best chance” in the form of new voting rights laws. But they focused instead on legislation that was dead on arrival.
“Our democracy is in a state of deep disrepair,” Rep. John Sarbanes, D-Md., said in a joint statement with other Democratic leaders Jan. 4, 2021. Their panacea: H.R. 1, the For the People Act. The bill, Sarbanes and his colleagues said, would “protect the right to vote, ensure the integrity of our elections, hold elected officials accountable” and even tackle campaign finance reform. Sarbanes declined to comment for this story.
Yet a year later, H.R. 1 has not passed. Neither have two subsequent Democratic election-related bills. Voting experts, civil society groups and some members of Congress now see the past year as a missed window of opportunity to implement practical reform.
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“It’s been a year since one of the worst attacks on our democracy,” wrote University of Kentucky law professor Joshua Douglas in the Washington Monthly last week. “One would think, in a functioning democratic republic, that in the following year we would do whatever it took to prevent the same kind of attack to our democracy in the future. But our institutions remain as vulnerable as ever.” What happened?
Instead of securing our democracy, experts and insiders familiar with the process say, the Democrats’ push to safeguard national elections has become a complete failure of political strategy, ill-matched to the demands of the moment and so overreaching that it was doomed from the start despite the broad popularity of several of the reforms it proposed.
H.R. 1 wasn’t written to become law
Although House Democrats pitched H.R. 1 last January as a bill for the political moment, most of the legislation had been written in 2018, before they held the majority — and before the wildly contested 2020 presidential election. At the time H.R. 1 was introduced, the Capitol siege was still two days away.
As a result, H.R. 1 doesn’t address issues raised by the many attempts by Donald Trump and his supporters to confuse and delay election proceedings, and ultimately overturn the results. The bill would not clarify the Electoral Count Act, require paper audit trails for electronic voting or institute protections for election officials, among other issues.
“That first version of H.R. 1 … was essentially just to dust off something that was generated when the Democrats were in opposition, prior to the 2020 election,” said Edward B. Foley, a professor of constitutional law at Ohio State University, who called the Democrats’ focus on the bill “both a strategic and a tactical mistake.”
“It was not built in response to the insurrection and the effort to repudiate honest votes,” he said.
Instead, H.R. 1 was more of a wish list from a minority party: voting rights and voter registration enhancements with anti-gerrymandering measures, new campaign finance restrictions and stronger ethics rules for federal officials, measures expanding automatic and same-day voter registration, and another making it more difficult for states to remove voters from their voter rolls. It included a measure mandating paper ballots alongside new financial disclosure requirements for federal judges.
Although some ideas in the bill enjoyed broad support among voters, most faced staunch opposition from GOP lawmakers, and some have little bearing on elections at all. It was largely a “messaging bill,” according to insiders — it telegraphs what a party’s priorities may be but isn’t expected to receive sufficient support to become law. “It’s pretty clear now that at least some of the folks calling the shots didn’t intend [H.R. 1] to be something that passed,” said a leader of one D.C.-based civil society organization involved in advocating for democratic reforms in 2021. “And the categorization of it as a messaging bill is more true than not.”
A symbolic bill’s prospects changed
Though H.R. 1 may have begun 2021 as symbolic legislation, the 48 hours following its introduction saw history made — twice — in ways that dramatically altered the bill’s fate.
Early on Jan. 6, Rev. Raphael Warnock and Jon Ossoff declared victory in their respective Senate runoffs, wins that would hand control of the Senate to Democrats. The double-barreled victories created a split 50-50 Senate for only the third time in the nation’s history, with Vice President Kamala Harris positioned to cast tiebreaking votes.
Before the runoffs, Washington conventional wisdom had been that the Republicans would likely hold the Senate and use their power to neutralize much of the Democratic agenda. The Georgia Senate results overturned that wisdom, handing Democrats control of the House, the Senate and the White House, creating a window of opportunity for election reform to become law.
The new political reality of a Democrat-controlled Senate was only beginning to settle in on the morning of Jan. 6, when pro-Trump insurrectionists assembled in Washington, joined by Trump advisers and allies hoping to derail Congress’ constitutionally mandated election certification.
That afternoon, Republican members of Congress attempted to slow the certification by lodging objections to vote tallies from several states. Meanwhile, violent Trump supporters outside the Capitol complex overwhelmed law enforcement, breached the walls of the Capitol and rampaged through the legislative complex.
By the early morning hours of Jan. 7, military and police had cleared insurrectionists from the Capitol, and Congress had certified President Joe Biden’s win. Democrats had a narrow window to pursue pragmatic legislation to secure federal elections, even with the support of some Congressional Republicans. They had the momentum of history, control of Congress and the White House, broad public support for democracy reform and political capital to spend.
But the vehicle and strategy Democrats had chosen were mostly unfit for the reality of the moment. Democrats faced a choice: They could reconvene, draw up a new, relevant election security package and even invite like-minded Republicans to participate. Or, they could just keep going with what they had.
The party chose to stick with the bill they had. They kept Republicans out of the process. Instead of pivoting, they put democracy reform in the back seat in favor of higher-profile legislative priorities set by the incoming Biden administration, like economic stabilization and infrastructure spending.
“I think there was a window to get Republicans on board on anti-election-subversion legislation and Democrats blew it,” Richard Hasen, a professor at University of California, Irvine School of Law told Grid. “Of course, Republicans are more to blame: Too many have embraced the ‘Big Lie,’ and many more are too afraid of Trump to stand up for fair elections and the rule of law.”
Democrats dallied. Republicans acted.
While Democrats put their reform efforts on hold, Republicans quickly moved state-level legislation making it more difficult to vote and easier for state legislators to overrule the will of their own voters in federal elections.
Since January 2021, legislatures in 19 states have enacted 34 bills with provisions that restrict voting rights, according to research by the Brennan Center for Justice. They include a new law that restricts access to mail-in voting in Florida, Texas laws that make it more difficult to vote by mail and to establish residency to vote, and an Arizona law that allows mail-in ballots to be thrown out if they arrive without a signature and are not fixed, or “cured,” by 7 p.m. on Election Day. In 15 states, “Republicans have advanced new laws to shift authority over elections from governors and career officials in the executive branch to the legislature,” the Atlantic reported in December.
Democrats responded with more rhetoric. In a July speech, Biden used the backdrop of Philadelphia’s National Constitution Center to issue a call to arms on democratic reforms.
“We are facing the most significant test of our democracy since the Civil War,” Biden said. “That’s not hyperbole. Since the Civil War. The Confederates back then never breached the Capitol as insurrectionists did on January the 6th.”
Then Biden pushed for “continuing the fight” for H.R. 1., even though the measure was not tailored to directly address many of the problems exposed by Jan. 6, had little chance of passing the Senate without end-running the filibuster and had seen little action since its introduction months earlier.
“We must pass the For the People Act,” Biden said. “It’s a national imperative.” The White House did not respond to requests for comment.
The Dems’ Act 2: Let’s just try different stuff
Despite Biden’s claims about the paramount importance of democratic reforms, he spent the summer working to advance other legislative priorities, including his signature $1.2 trillion Infrastructure Investment and Jobs Act.
With H.R. 1 stalled and the anniversary of the 2020 election approaching, some Congressional Dems tried to fashion smaller reform proposals that might have a greater chance of passage. In mid-August, a group of House Democrats led by Alabama Rep. Terri Sewell introduced the John Lewis Voting Rights Advancement Act. Sewell did not provide comment for this story. It passed the full House in a 219-to-212 vote on Aug. 24. The legislation would reinstate the Department of Justice’s authority to review the election administration by jurisdictions with histories of segregation, which had been stripped by the Supreme Court in its 2013 ruling in Shelby County v. Holder.
A month later, Senate Democrats introduced the Freedom to Vote Act, a narrowly tailored version of H.R. 1. The measure was a brokered deal between mainstream Democrats and Sen. Joe Manchin, D-W.V. Manchin did not respond to requests for comment. The bill would make Election Day a federal holiday and set new, nationalized standards for mail-in and early voting. The bill also included, at Manchin’s urging, a measure aimed at strengthening voter ID requirements. (See graphic below story for a comparison of the three bills.)
Both measures flopped in the Senate, largely along party lines. The Freedom to Vote Act failed in a 49-to-51 vote on Oct. 20. On Nov. 3 — the anniversary of the 2020 election — the upper chamber deep-sixed the John Lewis Voting Rights Advancement Act. Senate Majority Leader Chuck Schumer of New York voted no in both cases, a procedural maneuver meant to allow him to bring either bill back up for consideration. Schumer has said the Senate will vote no on or before Monday — Martin Luther King Day — on changing the filibuster rule if Senate Republicans continue to refuse to work with Democrats on voting rights legislation. Schumer did not respond to Grid’s inquiries.
“I don’t know what the path forward is”
In the waning weeks of 2021, political will and popular opinion began to coalesce around the idea of reforming the Electoral Count Act, the little-understood 1887 law which guides the mechanical process of vote counting. Trump and his legal advisers sought to exploit the Electoral Count Act’s intricacies to overturn the will of the voters in the presidential election.
Members of the House’s Jan. 6 Committee studying the attacks, including Rep. Liz Cheney (R-Wyo.), said in December 2021 that they favored an update to the Electoral Count Act and expected the committee to recommend changes to it. Cheney declined to comment to Grid. In the first week of 2022, Senate Minority Leader Mitch McConnell of Kentucky and Senate Minority Whip John Thune of South Dakota both said they supported discussing reforms to the law, and a bipartisan group of seven senators convened by Sen. Susan Collins, R-Maine, met by Zoom on Jan. 5 to discuss potential changes. McConnell, Thune and Collins did not respond to inquiries for this story.
Congressional action to update the vote-counting process appears to have broad public support as well. In an October poll first reported by the Washington Examiner, 62 percent of respondents — including 52 percent of Republicans — said they would favor an update that would “establish more clearly defined rules for Congress and the vice president to follow when counting Electoral College votes in January, and would make it more difficult for members of Congress to reject a state’s certified election results.”
Some experts and advocates are holding out hope for more sweeping reforms, even as they acknowledge there’s no clear path to achieve them short of changing Senate rules to avoid Republican opposition. “I don’t know what the path forward is,” said an attorney at a civil society group. “I hope there is one.”
At the moment, the Biden administration appears to share that position. White House deputy press secretary Andrew Bates said after the bipartisan Zoom meeting on the Electoral Count Act that Biden has remained focused on broader democratic reform measures contained in the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. “There is no substitute,” Bates told Axios. “Period.”
With the 2022 midterm elections just months away, and the 2024 presidential election casting a foreboding shadow less than three years out, some believe the urgency of the moment calls for progress to be made wherever it is possible.
“I’m not sure any of this is easy, in the hyperpolarization of American politics,” said Foley, of Ohio State University. “But I would start with the topic of, how do we guarantee an honest count of the ballots?”