Voting rights ‘compromise’ allows state lawmakers to trash voter choice

The Senate’s Freedom to Vote Act, a compromise alternative to the House-approved For the People Act, contains some provisions that expand voting rights but fails to prevent Republican legislators, in states they control, from throwing out election results they don’t like.

Failure to pass the original bill backed by the House could turn voting in Republican-controlled states into nothing more than a ceremonial act similar to the sham in place in countries run by autocratic dictators. In many of those states, there are already in place laws that make the legislative bodies the final arbiter of who wins an election.

Despite this serious flaw, Democratic Majority Leader Chuck Schumer, in his Sept. 14 endorsement, has called S2747, the Freedom to Vote Act, “a powerful new bill that would tackle head-on voter suppression, partisan gerrymandering, and the scourge of dark money.”

“The legislation also responds to recommendations from election officials and includes new provisions to boost confidence in our elections, including critical anti-election subversion reforms, a flexible voter ID standard, and commonsense voter list maintenance,” he said.

That’s a polite way of saying S2747 bans purges directed at voters of color.

Another positive aspect of S2747 bans partisan gerrymandering and makes Election Day a federal holiday. And it overturns onerous provisions, such as those Georgia enacted, to ban giving food and water to voters waiting in line. It also legalizes mail-in voting, early voting, and automatic voter registration.

But with all those positive provisions, S2747 has one big hole that by itself could engender constitutional crisis: It allows the voters’ choice to be canceled by GOP legislative bodies that simply don’t like how people voted in their states. Via silence, it lets them override their voters in a presidential election and decide which party “won” their states’ electoral votes.

Nothing can be more critical than that hole in the compromise law in an era defined by lies about “voter fraud,” rampant voter repression laws, and heavily gerrymandered legislatures.

In so many words, GOP-dominated legislatures in swing states such as Pennsylvania, Michigan, Wisconsin, Georgia, and Arizona could override the popular vote results in 2024. And those five states’ electoral votes gave Democrat Joe Biden his winning margin over GOP liar, fraudster, and Jan. 6 coup-sponsor Donald Trump.

Manchin’s 594-page measure doesn’t mention legislative manipulation of electoral votes. A reading of S2747’s extensive table of contents, and a word check of its text for the words “electoral,” “state certification,” and “electoral votes,” among others, drew a blank.

Otherwise, it’s quite extensive, even though it approves so-called state “voter ID” laws. This was done in an almost certainly futile bid to win Senate Republican support, which has yet to occur. The forms of voter ID allowed are being touted as numerous and not as odious as the laws currently in place or being pushed in GOP-ruled states.

Senate Rules Committee Chair Amy Klobuchar, DFL-Minn., whose panel would handle the compromise legislation—but hasn’t held a hearing on it yet—has also lauded Manchin’s “compromise.”

In her support for the Manchin compromise, Klobuchar has taken care to blast Republicans for how they handle elections, however.

“You cannot have these states basically deciding who their voters are,” Klobuchar told MSNBC on Sept. 19. “If they had trouble in the last election, if they lost the presidency, then change your policies, change your candidates, change your messages. Do not try to change your voters. That is against the fundamental right to vote.”

Republicans are so opposed to expanding voting rights that they are expected to block the Manchin compromise due to its expansion of voting rights and inclusion of measures allowing more people to vote easily.

Schumer told Reuters News Service the day he endorsed S2747 that if a GOP filibuster blocks Manchin’s bill, as it blocked the For the People Act, he’d “consider” abolishing the filibuster, at least as far as election and voting rights legislation is concerned.

That would be a positive move, even if it doesn’t go all the way and end the filibuster entirely. The filibuster is a racist tactic, essentially, where 41 senators’ votes can block anything. Death of the filibuster is a prime goal of progressive groups and lawmakers, led by Sen. Elizabeth Warren, D-Mass., organized labor, and the Poor People’s Campaign.

Besides Schumer, S2747 has a wide spectrum of Senate Democratic backers. Its original sponsors are Manchin, ultra-progressive Sen. Jeff Merkley (Oregon) and Sens. Tim Kaine (Virginia), Alex Padilla (Calif.), Jon Tester (Montana), Angus King (Ind-Maine), and Raphael Warnock, the Black pastor-turned-Democratic senator from Georgia who’s a top GOP target of both campaign cash for 2022 and the Peach State’s new voter suppression law.

And S2747’s hole didn’t stop the Congressional Black Caucus on Sept. 27 from circulating an online petition for it. The CBC seeks 75,000 signatures and contributions to its campaign finance committee, too.

Letting legislatures dictate who wins a state’s electoral votes appears to have been overlooked by all but one organization—unions—concerned with protecting the right to vote—and to have the results correctly counted and transmitted.

Neither the Leadership Conference for Civil and Human Rights, in an 84-page report on voter suppression, nor the Constitutional Action Center, nor the American Constitution Society, nor the ACLU mention the issue.

The ACLU comes the closest, in a five-year-old blog post by then-President Susan Herman. “The Electoral College has been a predictable rubber stamp so far, but there is always the chance of a December surprise from so-called ‘faithless electors’ who don’t vote as expected,” she wrote.

“Why should we tolerate this degree of unpredictability from a group we don’t actually want or expect to be exercising their own judgment?”

But the Supreme Court mentioned the issue, ironically in its July 2020 “faithless electors” case, Chiafolo v Washington. And the court unanimously backed the legislatures’ right to override the voters.

“Nothing in the Constitution expressly prohibits states from taking away presidential electors’ voting dis­cretion as Washington does” by fining and removing faithless electors, Justice Elena Kagan wrote. “The Constitution is barebones about electors. Article II includes only the instruction to each state to appoint, in whatever way it likes, as many electors as it has senators and representatives.”

Justice Clarence Thomas agreed in the ruling but was even more explicit than Kagan in his separate opinion. “When the Constitution is silent, authority resides with the states or the people,” he wrote. “This allocation of power is both embodied in the structure of our Constitution and expressly required by the Tenth Amendment. The application of this fundamental principle should guide our decision.”

That one group that saw the “state legislature” hole and denounced it, organized labor, isn’t surrendering on the issue.

If GOP-run states try to dictate who “wins” a presidential election, unions will be there to battle against it, the AFL-CIO Executive Council vowed in 2020. The principle holds, even if the fed specifically cited Trump’s threat to overturn the vote before Biden’s inauguration the following January.

“We, the elected leaders of America’s labor movement, have a message for anyone who would seek to prevent eligible voters from voting, to prevent our votes from being counted, to prevent the electors we choose from being seated, or to prevent those electors’ choice as president and vice president from being inaugurated on Jan. 20, 2021,” the council declared.

“We will not let you take our democracy away from us. America’s working people are determined and prepared to defend our democracy.”