Sen. Joe Manchin, who thus far has opposed Democrats’ big election reform bill, has finally made his counteroffer. On Wednesday, the West Virginian proposed a series of changes to the For the People Act that could win his vote. Democrats should grab the deal, even though it is not perfect, is still unlikely to pass, and doesn’t yet address the greatest threat in upcoming elections: the danger of election subversion.
Let’s begin with the lay of the land: Democrats have two big voting reform bills working their way through Congress. The first, the For the People Act (also commonly known as H.R. 1 or S 1), is a gargantuan bill that does many things from limiting partisan gerrymandering to requiring a period of early voting to establishing a public financing program for congressional campaigns to reenfranchising felons who have completed their time in prison to setting up a system of Supreme Court ethics reform. The second bill, the John Lewis Voting Rights Act, would restore a key provision of the Voting Rights Act that the Supreme Court killed off in its 2013 decision Shelby County v. Holder. That “preclearance” law required jurisdictions with a history of discrimination to get approval from the U.S. Department of Justice or a three-judge court in D.C. for any changes in voting rules. To get federal approval, the state had to show that its changes would not make protected minorities worse off. If preclearance were still in place, Georgia’s recent voting law and Texas’ proposed voting law would have to go through close review before implementation.
The For the People Act passed the House but has been stuck in the Senate. John Lewis is further behind, as House committees are seeking to build a strong legislative record for the inevitable court challenge that would follow any attempt to restore preclearance. Democrats have the slimmest of margins in the Senate, and Joe Manchin has been the sole Democratic senator not to endorse the For the People Act (though rumblings are that other Democrats signed on for messaging and are not happy with some parts of it). He has been more supportive of the John Lewis bill, but he suggested extending preclearance to all 50 states (a standard that may have a tough time before the Supreme Court). Even if Manchin signed on to support the bill, it would be the subject of a Senate filibuster. Senate Minority Leader Mitch McConnell is adamantly opposed to the bill, especially because of the campaign finance provisions he doesn’t like, and Manchin so far has strongly opposed eliminating the filibuster (even just for voting rights legislation, as I proposed in Slate in 2018).
With new pressure on Manchin since he again backed the filibuster and stated his explicit opposition to the initial version of the For the People Act earlier this month, he finally released his counteroffer on Wednesday. It includes a number of the most important voting rights and campaign finance priorities of the original bill, including a requirement of 15 days of early voting in federal elections, automatic voter registration, limits on partisan gerrymandering, and improved campaign finance disclosure. He’s also on board with extending campaign finance provisions to communications on the internet and to currently nondisclosing “dark money” groups, prohibiting false information about when, where, and how people vote, and an updated preclearance process.
Yes, Democrats should jump at the opportunity to pass such a bill, but it is also fair to acknowledge it is far from perfect. Many of the darlings in the For the People Act are not on Manchin’s list, such as felon reenfranchisement, public financing of congressional elections, restructuring the often-deadlocked Federal Election Commission, and limiting state voter purges. Not only would the Manchin proposal continue to allow states to engage in voter purges, it also will require some form of voter identification for voting in federal elections, though in a more relaxed form than some of the strict rules some states have enacted. It also would weaken some of the standards for restoring preclearance under the John Lewis bill, making it harder to get a jurisdiction covered by the requirement and easier for a jurisdiction to get out from under its coverage.
Again, this is a good deal being offered to Democrats, and Democrats should grab it. Voter identification is not necessarily bad, if it is implemented fairly, has ways for people lacking ID to still vote, and is funded fully by the government. Many of the items on the Democratic wish list not here are much less urgent than what is being offered and can be pursued another time.
Most importantly, Joe Manchin—the last obstacle on the Democratic side standing in the way of voting reform—supports it, which will allow the party to put to the test Manchin’s attempt to get bipartisan support for a voting bill. Although Manchin opposes eliminating the filibuster, as the Intercept reported on Wednesday, he recently told the “No Labels” group in a call that he might support filibuster reform, perhaps even lowering the threshold from 60 votes to a lower number of senators. It’s still a long shot, but as I argued back in March, the current version of the For the People Act has had no chance of passage and pushing for it rather than more urgent voting reform was wasting valuable time. Democrats can lose their Senate majority at any time with the death of an elderly Democratic senator and having Manchin on board is absolutely essential for any plan they seek to pass.
Ultimately, the biggest problem with the Manchin counteroffer is its failure to address the danger of election subversion—that Republicans are reworking state election laws to make it easier for partisan officials to miscount votes to alter election outcomes. A key provision of the For the People Act that works against election subversion is a requirement for all states to use paper ballots in all elections. Did Manchin leave that off the list because he was just listing highlights or because he opposes the provision? Or is it because West Virginia is one of the few states experimenting with internet voting? I hope it is the former: having a paper record of votes that can be counted independently by courts or other neutral bodies is an essential bulwark against election subversion. And there are other provisions for fair election review that were excluded from the initial bill and that are missing from Manchin’s proposal, which need to be added as well, such as those requiring transparency in the vote counting process.
They say, though, not to let the perfect be the enemy of the good. And Joe Manchin’s counteroffer is pretty, pretty good. At least it’s a start.