WASHINGTON — Major voting rights legislation died in the Senate on Wednesday night, at least temporarily ending the potential for changes to Wisconsin election laws and a GOP-led effort to restrict voting rights in the state.
The Freedom to Vote: John R. Lewis Act combined two voting rights bills that aimed to expand voting opportunities, protect against gerrymandering and reinstate the federal government’s ability to oversee voting laws in states that have enacted certain voting restrictions. The House passed the bill two weeks ago, but Senate Democrats failed to find a way around a threatened GOP filibuster of the bill, as they couldn’t win over Democratic Sens. Joe Manchin and Kyrsten Sinema to vote for a maneuver around the filibuster Wednesday.
But Democrats are not giving up in their efforts to ensure voting is widely accessible.
“Senate Democrats’ fight for voting rights is not over,” Senate Majority Leader Chuck Schumer tweeted on Thursday. “We will keep fighting until voting rights are protected for every single American.”
Congressional observers also said there may be ways to break up the bills and pass parts of it.
While the legislation failed to pass the Senate, here’s how it would have affected elections in Wisconsin.
Broadening the way voters cast their ballots
Among other provisions, the bill would have required states to offer vote-by-mail to every eligible voter and allow for ballots to be returned by mail or at a drop box.
Earlier this month, Waukesha County Circuit Judge Michael Bohren ruled that drop boxes can no longer be used for absentee ballots in Wisconsin because their use isn’t authorized by state law. Though the ruling will likely be appealed, the federal legislation would have protected against restrictions on drop boxes.
The bill also said any ballot postmarked by Election Day that arrives within seven days after the election must be counted. Mail-in ballots were a major point of contention in the 2020 election, including Wisconsin’s procedures for counting mail-in ballots.
On Oct. 26, 2020, the U.S. Supreme Court ruled Wisconsin mail-in ballots could only be counted if they were received by Election Day, siding with a federal appeals court. This led to a last-minute effort by the Democratic Party of Wisconsin to inform voters of the deadline, as the Postal Service recommended voters turn in their ballots by Oct. 27 to ensure they arrived on time.
In 2016, the Republican-controlled state Legislature moved up the deadline for absentee ballots to be counted, making it so they must be received by 8 p.m. on Election Day.
The Senate bill would have effectively vetoed this law and set a national standard for counting absentee ballots. In addition, it would have made Election Day a national holiday, allowing voters more time to get to the polls.
Prohibiting partisan gerrymandering
Another major provision would have banned gerrymandering, in which the party in power of a state legislature redraws congressional district boundaries to increase the number of districts with voters favoring that party.
“[Wisconsin was] always held up as one of the examples of the most egregious partisan gerrymandering in the country,” said David Canon, a political science professor at the University of Wisconsin-Madison. In the U.S. Supreme Court case Gill v. Whitford, a group of Wisconsin residents challenged a district map developed by a Republican-controlled state Assembly, state Senate and governorship.
In 2018, the Supreme Court dismissed the case for lacking standing. Then, in a 2019 case involving North Carolina, the Court ruled that federal courts cannot regulate redistricting.
The voting rights bill would have given the courts the right to do so, allowing federal legal challenges to states’ congressional voting maps.
“If the voting rights law [were] enacted, one thing that would happen would be to take control of the redistricting process out of the hands of the politicians and make it a more nonpartisan process,” Canon said.
Notably, the law would not have affected voting maps until after the 2030 census, when new district boundaries will be drawn.
Why voting rights are having a moment right now
According to William Galston, senior fellow of governance studies at the Brookings Institution, voting rights is an emotional issue for Democrats, especially among Black voters.
Meanwhile, former President Donald Trump has convinced 71% of Republicans that the 2020 election results were illegitimate.
“If you have the basis of both political parties intentionally energized around the issue of voting rights, then it’s almost inevitable that you’re going to end up with something like the current situation, where almost all Democrats are determined to push forward with legislation that almost all Republicans oppose,” Galston said.
According to Canon, voting rights became a partisan issue about 10 years ago over voter ID laws, and the pandemic has only exacerbated the issue.
“There were a lot of things…that happened in the pandemic that made it even more difficult to administer elections than normal, but all of those things now are also receiving additional partisan scrutiny,” Canon said.
In Wisconsin, the Republican legislature is still backing an ongoing investigation into the 2020 election results led by former state Supreme Court Justice Michael Gableman, although multiple probes have shown no evidence of widespread voter fraud.
“If Republicans control the state legislatures, which they do in most swing states [like Wisconsin], then I don’t see what’s going to stop these investigations,” Galston said.
The future of election reform
Despite Wednesday’s defeat of the Freedom to Vote: John R. Lewis Act, Canon and Galston said there are other possibilities for achieving electoral reform.
“The attention now shifts to the states,” Galston said. “And a number of voting rights advocates have urged a major voting rights campaign from the grassroots up, but aided insofar as it’s possible by national Democrats, including the president.”
In addition, Canon said the bipartisan effort to reform the Electoral Count Act “does have a decent chance of passing.”
The Electoral Count Act is the law that details how states finalize their election results, including the process of how Congress certifies electoral votes.
“The hope of the reformers is that they can specify beyond ambiguity the appropriate role of the vice president and the appropriate role of Congress once slates of electors have been received from the states,” Galston said.
Canon said changing the Electoral Count Act is ultimately what “the really interesting endgame of this could be.”