June 19, 2021
• Congress: In a major development for the fate of congressional voting and election reform legislation, Democratic Sen. Joe Manchin is now refusing to rule out supporting the For the People Act (also known as both H.R. 1 and S. 1) after recently saying he would oppose the bill if it lacked bipartisan support. Critically, Manchin released a list of reforms he supports and some of those he opposes, creating a roadmap for a potential compromise.
Separately, in leaked audio recording of a meeting with donors, Manchin further hinted he could back possible changes to the filibuster rule that could deter GOP obstruction. Manchin has steadfastly opposed eliminating the filibuster, and while he reiterated that position publicly on Wednesday, his leaked comments are a sign that voting reforms might still have a shot at passing, particularly if further Republican opposition to voting reforms and bills such as the commission to investigate the Jan. 6 Capitol insurrection convinces Manchin that there's no other option but to change Senate rules.
Manchin's new memo identified several key aspects of H.R. 1 that he supports either in whole or in modified form, including provisions that would:
Mandate 15 consecutive days of early voting, including two weekends;
Ban partisan gerrymandering and "use computer models," the latter of which isn't further specified;
Establish automatic voter registration through state driver's licensing agencies;
Require states to promote registration for groups such as people with disabilities;
Ban false statements intended to discourage voting;
Improve federal funding for training election officials;
Require that states notify voters of polling place changes at least a week before Election Day;
Adopt prepaid postage for absentee ballots;
Allow voters to vote if they show up at the wrong precinct but in the right jurisdiction for races that they are eligible to vote on; and
Require disclosure for "dark money" campaign donations and ads.
Manchin's position on no-excuse absentee voting was more opaque, with his memo stating that the bill should "[r]equire states to send absentee by mail ballots to eligible voters before an election if voter is not able to vote in person during early voting or election day due to eligible circumstance and allow civil penalty for failure." Separate reports, however, indicated he opposes mandating that all states that still demand an excuse (now just a small minority) remove that requirement for absentee voting.
Although Manchin's exclusion of existing provisions from the For the People Act in his memo doesn't necessarily indicate he opposes them, he did specifically express opposition to the bill's provisions that would set up a system of public financing for campaigns, which has been one of the main focuses of Republican attacks.
Perhaps most controversially, he urged a national voter ID requirement. While the voter ID bills passed by Republican-run states have enraged progressives due to their undisguised aim of suppressing turnout among communities of color, the suppressive effect of such a requirement could be greatly reduced if the federal government were to create a free and widely available national ID card. Democrats may understandably not be keen to include such a compromise, but it may be well worth the cost if it means securing a much more important ban on congressional gerrymandering and major expansion of other voting access measures like automatic registration.
Finally, Manchin also addressed the content of the John Lewis Voting Rights Advancement Act, which would revive the invalidated "preclearance" regime of the Voting Rights Act that the Supreme Court's conservatives struck down on pretextual grounds in 2013.
Manchin has long said he wants to see this legislation passed and has proposed imposing a nationwide preclearance system that would require all jurisdictions seeking to change their voting procedures to first obtain approval from the Justice Department or a federal court to ensure they don't discriminate along racial or ethnic lines. Manchin's new memo, however, called for additional changes that could undermine the efficacy of the bill, such as reducing the Attorney General's power to deem a jurisdiction's "actions as a voting rights violation without a judicial finding of discrimination," which could potentially mean bogging down disputes in court for years.
While Manchin's latest demands are likely to disappoint Democrats and democracy reformers who have called for as wide-ranging a bill as possible, Democrats hold little leverage over the West Virginia senator, whose vote is essential to overcome both GOP procedural obstruction and opposition to reform on the underlying merits. Manchin's move to detail changes that could win his vote is a key first step toward reaching some sort of compromise that could one day pass Congress, though many more hurdles remain. One of those hurdles is quickly approaching after Senate Majority Leader Chuck Schumer told Democratic senators this week that a procedural vote to advance voting legislation will take place on Tuesday.
VOTING ACCESS EXPANSIONS
• California: State Senate Democrats have passed a bill intended to strengthen California's automatic voter registration law by changing the way in which prospective voters are given the chance to opt out of registration. Currently, eligible voters who do business with California's Department of Motor Vehicles are automatically registered unless they choose to opt out at the time of the transaction, known as a "front-end" system. This latest bill would instead shift that opt-out opportunity to a subsequent mailed notification, a "back-end" system that proponents hope will encourage more new voters to remain opted in.
• Connecticut: Democratic legislators have returned for a special session and passed a spending bill that includes several voting expansion provisions that had failed to pass as a separate bill during this year's regular session. Those provisions include:
Automatic voter registration at multiple state agencies;
Ending the disenfranchisement of anyone with a felony conviction who is not in prison by restoring the rights of people on parole;
Requiring employers to give their workers two hours of unpaid time off to vote.
Allowing online applications for absentee ballots; and
Making absentee drop boxes permanent after their temporary adoption last year during the pandemic.
The bill now goes to Democratic Gov. Ned Lamont for his expected signature.
• Delaware: State House Republicans have blocked Democrats from passing a constitutional amendment to remove Delaware's excuse requirement for absentee voting, with Republican opposition denying Democrats the two-thirds supermajority needed for it to pass. The Democratic-run legislature had previously passed this amendment prior to the 2020 elections, the first of two times required for it to become law, and many of the same Republicans who voted against it this month had supported the measure when the House passed it in 2019.
Democrats are two seats shy of the necessary supermajority in the state House, and while this latest vote dims hopes of passing the amendment, it isn't completely dead just yet. Two Republican members didn't vote either for or against the measure, and since Democratic Majority Leader Valerie Longhurst also voted against it in order to allow her party to bring up the amendment again at a later date, it's possible that those two Republicans could provide the votes needed for passage.
However, legislators are scheduled to adjourn this year's session at the end of June, and if those Republicans don't come on board either later this year or by next year's session, Democrats will have to hope they can gain a two-thirds supermajority in a future election. That would entail pushing back the earliest date the amendment could take effect, since constitutional amendments in Delaware must pass in identical form in two consecutive legislative sessions with an election taking place in between.
• District of Columbia: A majority of members on the Democratic-run Washington, D.C. Council are sponsoring a newly introduced bill that would give voting rights in local elections to noncitizens with permanent resident legal status, best known as green card holders.
A few smaller jurisdictions around the U.S. in recent years have granted voting rights in local elections to noncitizens, and San Francisco, California has let noncitizens vote in school board elections, but no jurisdiction as large as D.C. has yet done so in local government races. Noncitizen voting was widespread in the U.S. during the 19th century but largely ended by around 1920 during an era that saw lawmakers pass major restrictions on immigration based on race and nationality.