What's next for voting rights?

Senate Democrats suffered a major defeat this week as Republicans filibustered their wide-ranging voting rights package, the combined Freedom to Vote Act: John R. Lewis Act, and Democrats Joe Manchin (West Virginia) and Kyrsten Sinema (Arizona) joined all 50 GOP senators to block Majority Leader Chuck Schumer's efforts to institute a "talking filibuster" that could force a simple majority vote by requiring opponents to continuously hold the Senate floor with lengthy speeches and procedural motions.

But that's not the end for voting reform in America: Here's what you need to know about where voting rights advocates are looking to next, the filibuster's role in the bill's defeat and why Democrats believe the right to vote is at a critical juncture.

For more, learn about how voting has evolved over the centuries, how claims of massive election fraud in 2020 lacked merit and how to report voter intimidation.

What can Congress do now to expand voting rights? 

 President Joe Biden has hinted the bill could come back, possibly in an altered form.

"One thing's for certain," Biden said last week. "Like every other major civil rights bill that came along, if we miss the first time, we can come back and try it a second time."

Sean Morales-Doyle, acting director of the Voting Rights and Election Program at the Brennan Center, has hope for future legislation.

"Democrats have sponsored voting rights legislation for years and it's always been shut down," Morales-Doyle said "This session the issue made it to the Senate floor for the first time in decades."

And Democrats in the Senate have promised to continue to push for voting reform.

"We're going to keep fighting for voting rights and it is important for us to move forward," Sen. Raphael Warnock (D-Ga.) told reporters last week. "This is a defining moment. I think everybody has to be heard on the record. And we'll keep talking to our colleagues and we'll see what happens."

Zack Smith, a legal fellow at Heritage Foundation's Meese Center for Legal and Judicial Studies, believes Democrats could gain traction for the next go-around "by getting on board with some common-sense election integrity measures." 

"They want to ban state voter ID laws but the majority of voters don't think that constitutes voter suppression," Smith said. "In 2020, we saw very high turnout rates, the highest in 100 years. This idea that voter suppression is happening widespread is somewhat misleading." 

Why are voting rights such a hot topic right now?

Democrats, including Biden, have made expanding voting rights a key issue after disproven claims of voter fraud in the 2020 presidential election led in at least 19 states to enact dozens of restrictive voting laws.

"In the last few years we've seen an unprecedented attack on our democracy and voting rights," Morales-Doyle said. "A wave of restrictive voting laws across the country at unprecedented rates, as a result of the proliferation of this lie that the 2020 election was stolen."

He added that the same rhetoric about voter fraud has motivated threats against election officials, as well as the attack on the Capitol building on Jan. 6, 2021.

The battle over voting reforms will move to the state level

Democrats who want to make inroads in voting reform will likely now look to individual state legislatures.

"It was in the statehouses where legislators implemented what I consider common-sense measures," Smith said. "So I think you'll see a lot more action on the state level. It's more arduous and time-consuming, but that's what the Founding Fathers intended." 

Supporters of expanding voting rights managed to strip provisions from Georgia and Texas election measures that would have barred early voting on Sundays, Morales-Doyle said.

Prohibiting what's called the "souls to the polls" strategy would have "very much targeted the Black community," he said. "But it was stopped."

The judiciary's evolving role in expanding voter rights

Outside of the legislature, voting-rights advocates have traditionally looked to the judiciary for relief. 

Last week, Wisconsin circuit court judge Michael O. Bohren ruled that drop boxes for absentee ballots are illegal in the Badger State, overturning a years-old policy instituted by the Wisconsin Elections Commission.

The judicial branch could still very well be the next arena for voting reform: In November, the Justice Department filed suit against Texas over Senate Bill 1, signed into law by Gov. Greg Abbott in November. According to court filings, the law placed restrictions "on voter assistance at the polls and on which absentee ballots cast by eligible voters can be accepted."

"It also criminalized election officials soliciting mail-ballot submissions," Morales-Doyle added. "Encouraging people to apply to vote by mail is now punishable by up to six months in prison," 

The Election Integrity Act (PDF) also grants "free movement" to partisan poll watchers within a polling place and makes it a crime for poll workers to take any actions that would "hinder partisan watchers," Morales-Doyle said. "It puts the rights of partisans over objective, impartial election workers."

Last week, the Ohio Supreme Court struck down the state's new congressional map, ruling it violated a voter-passed amendment banning partisan gerrymandering. The justices called lawmakers' efforts at drawing district lines "the antithetical perversion of representative democracy." 

In August 2021, the Idaho Supreme Court blocked the implementation of a Republican-backed law that critics said would have made it practically impossible for voters to bring forward a ballot initiative or referendum.

Isn't there already a Voting Rights Act?

Yes and no: The Voting Rights Act of 1965 was groundbreaking legislation aimed at enforcing the 15th Amendment and undoing racist election practices adopted by Southern states in the Jim Crow era, including poll taxes and literacy tests as a prerequisite for voting.

It endowed federal examiners with the power to register voters and required states with a history of discrimination to receive federal approval before enacting new voting laws or redistricting plans.

The act's power, however, has been significantly diluted in the past decade: In 2013's Shelby v. Holder, the Supreme Court lifted the requirement for federal preclearance before states could implement new voting laws.
In July 2021's Brnovich v. Democratic National Committee, the high court ruled Arizona was within its rights to both bar anyone but a family member from returning an early ballot for a registered voter and to discard any ballot submitted in the wrong county -- even if it was for statewide or federal office.

Plaintiffs in the case held that those policies were racially motivated and in violation of both the Voting Rights Act and the Fifteenth Amendment.

Why do Senate Democrats want to change filibuster rules?

The filibuster is a loosely defined term for actions designed to prolong debate and ultimately "delay or prevent a vote on a bill, resolution, amendment, or other debatable question," according to the US Senate website.

Republicans have used the tool to block much of Democrats' recent legislation: There have been over 2,000 filibusters in the past century, according to Democracy Docket, but half occurred in the last 12 years. 

That's led some to doubt the very effectiveness of the Senate, which Biden said last week had been "rendered a shell of its former self."

Why do Republicans oppose abolishing the filibuster?

"The party in the minority always wants to protect the filibuster," said Smith. "Aside from principled reasons, there are practical reasons, so they don't lose every fight."

Smith points to past comments by Schumer and Biden, who have staunchly defended the procedural tactic in the past.

"Changing senate rules to squash extended debate -- what shortsightedness and what a price history will exact on those who support this radical move," then-Sen. Joe Biden declared in a judicial committee hearing in 2005.

The filibuster plays an important role in the Senate, Smith said. 

"It's supposed to be the 'cooling saucer' to the boiling temperament of the House of Representatives," he said. "If the filibuster is abolished it would radically transform the Senate and just turn it into a smaller House of Representatives."

What was in the Freedom to Vote: John R. Lewis Act? 

The voting rights package that failed in the Senate would have expanded voting access, banned partisan gerrymandering and combated voter suppression, among other things. 

• Mandating same-day and online voter registration, and automating voter registration nationwide. 
• Requiring all states to offer an early voting period of at least 15 days prior to Election Day at easily accessible locations.
• Requiring states that have voter ID requirements for in-person voting to allow "a wide range of forms of identification (including electronic copies) and alternative options for voter validation," including non-photo IDs, according to the Brennan Center.
  
• Increasing existing penalties for voter intimidation and establishing federal criminal penalties for disseminating misinformation aimed at voter deterrence.
• Making it a federal crime to harass, intimidate or threaten election officials, volunteers and poll workers. 
• Restoring voting rights to previously incarcerated Americans upon their release.
• Combating long lines at polling places, which disproportionately impact communities of color, and restricting states from banning donations of food or water to voters in line.