Voting Rights, The Filibuster, Court-Packing, and Why You Should’ve Voted For Hillary Clinton
The Supreme Court’s conservative majority on Thursday continued castration a landmark voting rights law in a decision likely to help Republican states fight challenges to voting restrictions they’ve put in place following last year’s elections. In a case from Arizona, the justices upheld two state voting restrictions that limited who can return early ballots for another person and bars the counting of votes cast in the wrong polling precincts. The federal appeals court in San Francisco said both measures disproportionately affect minority voters and violated the Voting Rights Act prohibition on discrimination in voting.
The court’s 6-3 ruling upheld voting limits in Arizona that a lower court had found discriminatory under the federal Voting Rights Act rejecting the idea that showing a state law disproportionately affects minority voters is enough to prove a violation of law. Native Americans who have to travel long distances to put their ballots in the mail will most likely to be affected by Arizona’s ballot collection law. The appeals court found votes cast by Black and Hispanic voters were most likely to be tossed out because they were cast in a wrong precinct.
This is the reality. Voting Rights are under attack and the solutions are longshots as packing the court is politically impalatable while eliminating the filibuster, though possible as Democrats have the White House and Congress, is procedurally difficult. Of course all of this would be very different had we elected Hillary Clinton.
Mark Sherman for the AP notes how Republicans argue that the state restrictions are simply efforts to fight potential voting fraud and ensure election integrity. Many Republicans continue to question the 2020 election’s outcome, despite the absence of evidence. Republican elected officials in a number of states have responded by enacting restrictions on early voting and mailed-in ballots, as well as tougher voter identification laws.
Biden narrowly won Arizona last year, though since 2018, the state has elected two Democratic senators. Arizona’s most populous county, Maricopa, has been in the midst of a Republican-led audit challenging last year’s vote. The challenged Arizona provisions remained in effect in 2020 because the case was still making its way through the courts.
This ruling came eight years after the high court took away what had been the Justice Department’s most effective tool for combating discriminatory voting laws — a different provision of the federal law that required the government or a court to clear voting changes before they could take effect in Arizona and other states, mainly in the South, with a history of discrimination in Shelby County v. Holder (2013) Many of the state measures that have been enacted since then would never have been allowed to take effect if the advance clearance provision of the Voting Rights Act had remained in force.
Left in place was Section 2, with its prohibition on rules that make it harder for minorities to exercise their right to vote. At the heart of the Arizona case was the standard for proving a violation of the law. Lawsuits challenging laws enacted in Florida and Georgia, including a Justice Department suit in Georgia last week, allege violations of the voting rights law.
This decision will most likely fueled new calls from Democrats to pass federal legislation, blocked by Senate Republicans, that would counter the new state laws. With Republicans united in opposition to those measures, Democrats first would have to change Senate filibuster rules that require 60 votes for most legislation.
The Senate tradition of unlimited debate has allowed for the use of the filibuster, a loosely defined term for action designed to prolong debate and delay or prevent a vote on a bill, resolution, amendment, or other debatable question. Prior to 1917 the Senate rules did not provide for a way to end debate and force a vote on a measure. That year, the Senate adopted a rule to allow a two-thirds majority to end a filibuster, a procedure known as “cloture.” In 1975 the Senate reduced the number of votes required for cloture from two-thirds of senators voting to three-fifths of all senators duly chosen and sworn, or 60 of the 100-member Senate.
Molly E Reynolds of the Brookings Institution explains how the number of cloture motions filed is a useful proxy for measuring filibusters, and the number (pictured below) of such motions has increased significantly during the 20th and 21st centuries. Gridlock is real.
Getting Around the Filibuster to Protect Voting Rights
Reynolds notes how Senators have two options when they seek to vote on a measure or motion. Most often, the majority leader (or another senator) seeks “unanimous consent,” asking if any of the 100 senators objects to ending debate and moving to a vote. If no objection is heard, the Senate proceeds to a vote. If the majority leader can’t secure the consent of all 100 senators, the leader (or another senator) typically files a cloture motion, which then requires 60 votes to adopt. If fewer than 60 senators—a supermajority of the chamber—support cloture, that’s when we often say that a measure has been filibustered.
While much of the Senate’s business now requires the filing of cloture motions, there are some important exceptions. One involves nominations to executive branch positions and federal judgeships on which, thanks to two procedural changes adopted in 2013 and 2017, only a simple majority is required to end debate. A second includes certain types of legislation for which Congress has previously written into law special procedures that limit the amount time for debate. Because there is a specified amount of time for debate in these cases, there is no need to use cloture to cut off debate.
Modifying the Filibuster to Protect Voting Rights
According to Reynolds, the Senate could also move to weaken the filibuster without eliminating it entirely. A Senate majority could detonate a “mini-nuke” that bans filibusters on particular motions but otherwise leaves the 60-vote rule intact.
A second option targets the so-called Byrd Rule, a feature of the budget reconciliation process. To guard against a majority stuffing a reconciliation measure with non-budgetary provisions, the Byrd Rule limits the contents of the bill and requires 60 votes to set aside. Because the Senate’s non-partisan parliamentarian plays a significant role in advising whether provisions comply with the Byrd Rule, some senators have proposed diluting the power of the Byrd Rule by targeting the parliamentarian weakening the filibuster by making it easier for a majority party to squeeze more of its priorities into a reconciliation bill (which then only requires a simple majority to pass).
Eliminating the Filibuster to Protect Voting Rights
Reynolds points out the most straightforward way to eliminate the filibuster would be to formally change the text of Senate Rule 22, the cloture rule that requires 60 votes to end debate on legislation; however, ending debate on a resolution to change the Senate’s standing rules requires the support of two-thirds of the members present and voting. Absent a large, bipartisan Senate majority that favors curtailing the right to debate, a formal change in Rule 22 is extremely unlikely.
A more complicated, but more likely, way to ban the filibuster would be to create a new Senate precedent. The chamber’s precedents exist alongside its formal rules to provide additional insight into how and when its rules have been applied in particular ways. Importantly, this approach to curtailing the filibuster—colloquially known as the “nuclear option” and more formally as “reform by ruling”—can, in certain circumstances, be employed with support from only a simple majority of senators.
The nuclear option leverages the fact that a new precedent can be created by a senator raising a point of order, or claiming that a Senate rule is being violated. If the presiding officer (typically a member of the Senate) agrees, that ruling establishes a new precedent. If the presiding officer disagrees, another senator can appeal the ruling of the chair. If a majority of the Senate votes to reverse the decision of the chair, then the opposite of the chair’s ruling becomes the new precedent.
By winning majorities in both houses of Congress and the White House, Democrats have achieved one necessary condition for filibuster reform: unified party control of Washington. Under divided party government, a Senate majority gains little from banning the filibuster if the House or president of the other party will just block a bill’s progress.
But Reynolds points out how the filibuster could still survive unified party control. Senators often speak about their principled support for the filibuster, but their views about the rules are more often shaped by their views about policy. There would likely need to be a specific measure that majority party senators both agreed upon and cared enough about to make banning the filibuster worth it.
Additionally, individual senators may find the filibuster useful to their own personal power and policy goals, as it allows them to take measures hostage with the hopes of securing concessions. For majority party leaders, meanwhile, the need to secure 60 votes to end debate helps them to shift blame to the minority party for inaction on issues that are popular with some, but not all, elements of their own party. Finally, senators may be concerned about the future; in an era of frequent shifts in control of the chamber, legislators may worry that a rule change now will put them at a disadvantage in the near future.
Court-Packing to Protect Voting Rights
Some lawmakers and liberal groups also favor Supreme Court changes that include expanding the nine-justice bench or “court packing”. Andrea Alexander of Rutgers explains how people often use “court packing” to describe changes to the size of the Supreme Court, but it’s better understood as any effort to manipulate the Court’s membership for partisan ends. A political party that’s engaged in court packing will usually violate norms that govern who is appointed (e.g., only appoint jurists who respect precedent) and how the appointment process works (e.g., no appointments during a presidential election).
While expanding the size of the Court will have the immediate effect of further diminishing the Court’s standing, restoring a sense of balance to the Court will most likely require Republicans and Democrats to come together and agree on new rules for how justices are chosen and the kind of jurists who serve on the Court.
Number of Justices
The Constitution is silent about the number of justices on the Supreme Court. Article III, section 1 provides simply that “[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”
There is nothing sacrosanct about nine justices. Historically, the number of justices has varied between five and ten. The last change to the Court’s size occurred following the Civil War, when Congress reduced the size of the Court to prevent President Andrew Johnson – an apologist for Southern segregationists –from appointing justices to the Court.
The last serious attempt to change the size of the Court was FDR’s 1937 court packing plan. FDR proposed that plan in response to a series of Supreme Court decisions that struck down New Deal legislation. When he proposed the plan, FDR was already in a precarious political position. The plan failed in Congress, but it arguably succeeded in constraining the Court’s attack on the New Deal.
After the court packing plan failed in Congress, Justice Willis Van Devanter – one of the “Four Horsemen” who led the Court’s opposition to the New Deal – retired and was replaced by Hugo Black. Within a few years, seven of the Court’s nine justices were FDR appointees.
In April, President Biden signed an executive order to create a commission to explore expanding the court. As of October 2020, support for packing the court is 21-46.
I Hope You Voted For Hillary Clinton If You’re Concerned About Voting Rights
As a result of winning the 2016 election, Donald Trump ended up choosing (a task he outsourced to the ultraconservative Federalist Society) three Supreme Court justices: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The three justices at the top of Hillary Clinton’s list were, according to Above The Law’s David Lat , were the following:
- Chief Judge Merrick Garland (D.C. Cir.)
- Judge Sri Srinivasan (D.C. Cir.)
- Judge Jane Kelly (8th Cir.)
- Judge Paul Watford (9th Cir.)
- Judge Jacqueline Nguyen (9th Cir.)
- Justice Goodwin Liu (California Supreme Court)
- Justice Mariano-Florentino Cuéllar (California Supreme Court)
- Judge Lucy H. Koh (N.D. Cal.)
- Judge Patricia Millett (D.C. Cir.)
- Senator Amy Klobuchar (D-Minn.)
- Senator Cory Booker (D.-N.J.)
After Chief Judge Garland — whom I’d give the best odds if I were preparing a SCOTUS nomination gambler’s guide — I’d put in the second tier the following judges: Sri Srinivasan, Jane Kelly, Paul Watford, and Patricia Millett. They are all, like Chief Judge Garland, highly respected federal appellate judges who were previously considered by President Obama for the nomination that ultimately went to Garland. All would — unlike the white male Garland — add gender or racial/ethnic diversity to the Court. And all would be confirmable, to varying degrees, by a Republican Senate.
(On that score, I’d give Judge Srinivasan — who worked in the Bush Justice Department, can call Senator Ted Cruz a friend, and won confirmation 97-0 — the edge. Judge Kelly also won unanimous confirmation, 96-0, but her work as a federal public defender lends itself more easily to Republican attacks than Srinivasan’s pre-robescent career at the DOJ and O’Melveny & Myers.)
In the next tier, I’d put Judge Jacqueline Nguyen, Justices Goodwin Liu and Tino Cuéllar, and Judge Lucy Koh. Why wouldn’t I put Judge Nguyen in the prior tier? I love Asian-American women on the Ninth Circuit — heck, I wrote a book (affiliate link) with one as a protagonist (note: in response to a question I sometimes get, no, Judge Stinson of Supreme Ambitions is not based on Judge Nguyen) — but for whatever reason, Nguyen doesn’t generate the same buzz as the Srinivasans and Watfords of the world among legal-geek circles. As for Justices Liu and Cuéllar and Judge Koh, I’m giving them a modest “non-federal appellate judge” discount, even though all of them have dazzling résumés, great reputations, and diversity advantages on their side.
It’s no doubt any three of eleven possible Hillary Clinton Supreme Court justices would’ve come to different conclusions on voting rights than Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh. To channel Maya Rudolph playing Kamala Harris on Saturday Night Live, “We could’ve had a bad bitch!”