- Georgia’s restrictive SB 202 bill is merely a warning shot.
- There are currently more than 360 bills in 47 state legislatures restricting access to voting.
- Democrats have a limited window of opportunity to pass landmark voting rights legislation before losing their majorities.
- Carl Gibson is a freelance journalist and columnist from Kentucky.
- This is an opinion column. The thoughts expressed are those of the author.
- See more stories on Insider’s business page.
Georgia’s Senate Bill 202 is by far the most draconian law passed by any state legislature with respect to restricting access to voting. This is merely an opening salvo in a widespread assault on the right to vote, and other Republican-controlled state legislatures are hoping to pass similar bills. The only way to head off the wave of attacks on the fundamental right of all citizens to have equal access to vote is for Democrats to use their slim majorities to immediately pass new voter protections. If HR 1 (the For The People Act) and the John Lewis Voting Rights Advancement Act don’t become law, Georgia’s anti-voting law will become just one of many.
Republicans are moving the goal-post
A New York Times analysis of the new Georgia elections law (SB 202) found that, among other things, it limits the window of time to request an absentee ballot, makes it illegal for election officials to mail absentee ballots to all voters, levies criminal penalties for anyone who gives water to voters in long lines, severely limits the number of ballot drop boxes, and replaces the secretary of state as chair of the State Election Board with someone elected from the state legislature. The Georgia legislature (which has been under Republican control since 2005) also now has the power to remove municipal and county election officials and replace them with people appointed by partisan state lawmakers.
Georgia Governor Brian Kemp (R) has argued the new law is necessary to make the state’s elections “secure, accessible, and fair.” This is despite Georgia’s Republican Secretary of State, Brad Raffensperger, stating in a Washington Post op-ed that “Georgia’s voting system has never been more secure or trustworthy.” Even Georgia Lieutenant Governor Geoff Duncan (R) thought the bill went too far to curb access to voting.
Various civil rights groups have since filed a legal challenge to SB 202, petitioning for the law to be rendered unconstitutional and in violation of the Voting Rights Act. But because Georgia is part of the 11th Circuit Court of Appeals, and because a majority of the circuit’s judges were appointed by Republican presidents, SB 202 may very well be upheld. Even if the 11th Circuit struck down the law, appellants could end up swaying the United States Supreme Court, which maintains a 6-3 conservative majority. Moreover, Chief Justice John Roberts even wrote the majority opinion in the landmark voting rights case that opened the door for bills like SB 202 to become law across the country.
The 2013 Shelby County vs. Holder decision will undoubtedly be remembered in history books with the same level of disdain as the 1857 Dred Scott vs. Sandford decision. Both decisions created false racial hierarchies rendering Black people to second-class citizen status. Whereas Dred Scott declared Black people did not have the rights of citizenship, Shelby County declared that the portion of the Voting Rights Act of 1965 pertaining to protections for Black voters was unconstitutional. This released nine mostly Southern states – Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia – from getting “pre-clearance” from the federal judiciary before changing laws pertaining to voting rights. At the time, Justice Antonin Scalia justified his vote to eliminate those protections by saying the Voting Rights Act created “racial entitlement” for Black voters.
Just days after the Shelby County decision, the League of Women Voters warned that “the floodgates have opened” for widespread voter suppression legislation across the country and called for Congress to pass legislation guaranteeing everyone the right to vote. They were right: according to the Brennan Center for Justice, there are at least 361 bills awaiting action in 47 states that aim to curtail ballot access for voters. Five of those bills have already become law this year, and 29 bills have been passed by at least one legislative chamber. 49 of those bills are in Texas. And in Arizona and Georgia – states with Republican-controlled legislatures where Joe Biden narrowly defeated Donald Trump in the 2020 election – there are 23 and 25 pending voter suppression bills, respectively.
For Democrats, it’s now or never
The best way to beat back this wave of anti-voting bills is to pass federal legislation guaranteeing the absolute right of all citizens to cast a ballot. HR 1, which passed the House in March and is currently awaiting action in the Senate, would go a long way toward advancing that goal. Among other things, the bill would establish automatic voter registration, in which citizens are automatically registered on their state’s voter rolls when getting state-issued driver’s licenses and ID cards. It would also guarantee same-day voter registration for federal elections, which allows citizens to register to vote at their polling precinct on the day of the election. HR 1 also requires states to open up the early voting period at least two weeks before an election.
The John Lewis Voting Rights Advancement Act, which was introduced in the Senate in the 116th Congress, is the perfect companion to HR 1. That bill restores the preclearance requirement in the Voting Rights Act that was undone by the Shelby County decision, forcing state governments to win approval from the federal bench before changing election laws. The Act also broadens cases in which the Department of Justice can send federal election observers to states that federal courts have deemed necessary to ensure adequate protections are in place for all voters.
While these bills are great antidotes for the wave of voter suppression bills being introduced across the country, they still have yet to overcome the key hurdle of the filibuster. Even though they don’t control the Senate, Republicans can still invoke the filibuster for any non-budgetary legislation, requiring an impenetrable 60-vote threshold first be met before a bill can even get an up-or-down vote. If they had a unified bloc, Democrats could make procedural maneuvers to eliminate the filibuster with Vice President Kamala Harris casting the tie-breaking vote. Centrist Democrat senators like Joe Manchin and Kyrsten Sinema are still currently in favor of keeping the filibuster, dooming voting rights legislation to the legislative graveyard. However, President Joe Biden may be warming to the idea of limiting the power of the filibuster and could even be making moves behind the scenes to eliminate it entirely.
Biden has also notably appointed Gayle Manchin, Joe Manchin’s wife, to a “key position” in the White House, essentially tying Manchin’s family to his administration. It’s difficult to see how this isn’t a maneuver to placate Manchin in an effort to soften the senator’s position on the filibuster (admittedly a tall order given Manchin’s recent op-ed in favor of keeping it). In the event Manchin does eventually flip on the filibuster, Sinema could soon follow, not wanting to be seen as the lone obstacle in the way of significant voting rights expansion.
If Senate Democrats act to eliminate the filibuster, it should be done right away. As The Daily Poster recently pointed out, there are multiple septuagenarian senators from states with Republican governors. Should anything happen to aging senators like Patrick Leahy, Ed Markey, Bernie Sanders, or Elizabeth Warren, any one of them could be replaced with a Republican, abruptly ending Democrats’ control of the Senate and putting Senate Minority Leader Mitch McConnell back in the driver’s seat.
Democrats will have to decide relatively soon whether they’d rather keep a Jim Crow relic like the filibuster, or have new federal voting rights legislation. If they want any hope of stopping the relentless march of state-level, Republican-led voter suppression efforts, it’s obvious what must be done: Democrats should immediately nuke the filibuster and pass HR 1 and the John Lewis Voting Rights Advancement Act, or kiss their majorities goodbye.
Carl Gibson is a freelance journalist whose work has been published in CNN, The Guardian, The Washington Post, The Houston Chronicle, Barron’s, The Independent, and NPR, among others. Follow him on Twitter @crgibs.