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Back in January, after the riot at the Capitol, election law expert Richard L. Hasen wrote out a checklist of all the things Democrats should do once they assumed control of the White House and Congress: strategies to shore up the distrust that has been seeping into American politics. What wasn’t on his list was a massive voting rights bill—he just thought it was too unwieldy: “I don’t think that the strategies Democrats are pursuing are ones that are likely to actually yield results in Congress,” he told me. But Democrats did go ahead and try to pass a major voting rights bill known as the For the People Act, or H.R. 1, and came up against the Senate minority blockade. All 50 Democratic senators voted on Tuesday to open up debate over voting rights legislation—but without 10 Republicans, the motion failed. Have the Democrats squandered their chance at election reform, on an issue no less fundamental than the very right to vote, by trying to shoot the moon? To figure out what went wrong, what lessons Democrats can take from this, and what the future of voting rights legislation may look like, I spoke with Hasen on Wednesday’s episode of What Next. Our conversation has been edited and condensed for clarity.
Mary Harris: You seem to encourage lawmakers to be pragmatic and practical. How often do you actually see them acting thus?
Rick Hasen: In the election space, it’s really tough because it’s seen as a zero-sum game. This is about the legislators themselves and whether they’re going to get reelected. It’s not as though I philosophically disagree with a lot of what’s in H.R. 1. It’s that in a 50-50 Senate, it seems that “H.R. 1 or we all die” is a bad and ultimately self-defeating message.
It’s hard to have these conversations across the aisle is because voting is existential to the people who are making the decisions about how to reform the laws. So the stakes are very high.
The stakes are high, and the road to election reform is full of unintended consequences. When you try to make things better, you don’t always succeed. So that’s an argument for incrementalism, even if you think that ultimately we need radical change.
I mean, you said in January that things are going to get much worse if Democrats do not act quickly and decisively when it comes to voting rights.
And they haven’t. We’re in a period where the potential for the worst nightmare is there. But months have been wasted.
Right now the battle Democrats are waging over voting rights is mainly focused on the Senate. That was where the For the People Act was parked. Saying it is a massive piece of legislation is an understatement.
I think it’s more than 800 pages of a Democratic wish list. It tackles everything from partisan gerrymandering to early voting to Supreme Court ethics rules to public financing for congressional elections to campaign disclosure. It’s like a Democratic messaging bill: “Here’s the package of things we would like.”
You’ve always said that H.R. 1 is just too big—back in January, you wrote, “Although there will be great pressure to do so, Congress should not first try to pass H.R. 1.” Can you explain your thinking here?
Well, Democrats have the thinnest of majorities, right? If they had won fewer seats, they wouldn’t have the majority in the Senate. So one defection is enough to get rid of it. And in the House, they only have a narrow majority, because Democrats’ 2018 majority narrowed after the 2020 elections.
And there’s some evidence that not all Democrats are on board with this.
Exactly. When you put together this really big bill, there’s two ways to think about it. One is you put together a “Christmas tree” kind of bill, as they call it, where you give everybody an ornament and everybody’s happy. Sometimes that works if you’re basically giving away pork. But if you’re doing it the other way—trying to put in a lot of election reforms, some of which are going to affect the members themselves who are going to vote on it—you end up losing people. To take an important example, some Black Democrats in the House are worried the provisions that would limit partisan gerrymandering are going to hurt the ability to draw Black-majority districts under the Voting Rights Act, and that this could hurt their power.
Because that’s part of what happens where areas are carved out. And it’s much more likely you’re going to have Black representation in Congress because of how those districts are made.
Right. And that’s just one example. There are some Democrats who don’t like the particulars of the public financing provision that would, for the first time, install public financing for congressional elections.
Again, if Democrats had a supermajority, that would be one thing. But when you peel off one or two votes, you don’t have the margin there. So really, the focus should be on things that are more urgent, rather than a wish list for another time. But Democrats have used H.R. 1 as a form of campaigning, as a form of messaging. So they seem to be almost satisfied with having it as an election issue, rather than actually getting something done.
For a long time, West Virginia Sen. Joe Manchin was the only Democratic senator who refused to publicly endorse the bill. But then, last week, he released a counterproposal. It’s not as massive as H.R. 1, but it picks out a lot of the highlights from the bigger bill and combines it with a version of another piece of voting rights legislation: the John Lewis Voting Rights Act. That law would restore sections of the Voting Rights Act that were struck down by the Supreme Court in 2013. When you saw this from Manchin, what did you think?
My first reaction was that Democrats should grab it, even though it’s still not likely to pass because it’s going to come up against the filibuster. Manchin and Arizona Sen. Kyrsten Sinema have said they’re not going to blow up the filibuster either, but if there’s a unified Democratic front and there’s a tight bill and there’s repeated Republican intransigence, then maybe there’s a chance that Manchin would blow up the filibuster.
Well, Manchin implied that he could bring some Republicans along with him.
He said that. And then as a show of force, the very next day, you had Mitch McConnell hold a press conference with other Republican senators—including some that you wouldn’t expect, like Lisa Murkowski or Mitt Romney, those who might be perceived as looking for common ground. But they all came out and said, no way, we’re sticking together. So Manchin is not going to get what he says he thinks he’s going to get.
Manchin’s compromise legislation proposes limits on partisan gerrymandering, 15 days of early voting, and automatic voter registration. But it also has some provisions that, if you’re a liberal, you may think are problematic—like national voter ID. But you think, when you look at the larger picture, it’s not such a bad trade-off.
I’ve been saying since my 2012 book, The Voting Wars, that you can imagine a compromise where you have a national voter ID combined with universal voter registration, and the government just goes out and registers everybody. I mean, that’s pretty much how it’s done in every other advanced democracy. They have a national identity card and registration is automatic. So voter ID itself is not necessarily bad if the state takes on the burden of getting people the right IDs. Manchin’s memo says that this is No. 4 on this list: requiring voter ID with allowable alternatives—utility bill, etc.—to prove identity to vote.
I don’t think that voter ID laws are necessary to prevent an appreciable amount of fraud. But voter ID is popular. It seems like a commonsense thing to too many Americans. And if this is the price to rein in partisan gerrymandering, restore preclearance, legislate a meaningful form of disclosure for online political advertising, and establish early voting throughout the country for 15 days, I would pay that price any day of the week.
The real glaring issue is that Manchin’s tries to correct some amount of voter suppression—but it doesn’t do much to prevent voter subversion.
One of the things that bothers me the most about Manchin’s proposal‚—and it’s something that hasn’t really gotten a lot of attention—is that in H.R. 1, there’s a provision that requires everyone to vote using a voting machine that produces a paper ballot. That is so crucial to prevent election subversion, because there’s a paper record. If somebody says the votes are this much and you can have an independent court or someone count the paper votes, we can find out if that’s actually true. But the paper trail provision was missing from Manchin’s bill. Maybe that’s just because it’s not a priority of his. Maybe he hasn’t thought about it. But I am concerned.
The other senator from West Virginia has talked about how they are experimenting with, having people in the armed services vote digitally. You could see why you would not want to have that in there.
Exactly. And that’s what I mentioned in Slate last week, that I’m concerned Manchin actually might like internet voting, which I think is a disaster from the point of view of election confidence. Right now, you’ve got a third of the country or more that believes without evidence that the 2020 election was stolen. We need to shore up our confidence in elections. Just imagine if we had the same situation that led to Jan. 6 and the fight over the vote in Georgia but there was no paper trail to be recounted. A few years ago in Georgia, many counties had electronic voting machines with no pieces of paper. So you push a button that says, here’s the totals, and that’s all you can do. You can imagine the conspiracy theories that were flying around there when there was no paper. Brad Raffensperger had a hand recount of every ballot in Georgia. It’s essential that we have pieces of paper so we can conduct recounts. That, to me, is the most important provision of H.R. 1 that needs to pass.
What’s interesting to me is you’re saying there’s something that’s very important that’s missing from what Manchin has offered as a compromise—but Dems should be taking the deal anyway.
Yeah, take the deal anyway. Because it’s Manchin or nothing, right? So why not take the deal? That doesn’t mean you can’t still push for all kinds of measures to prevent election subversion. I hope there’s going to be a moment where some adults in the room want to, for example, change the Electoral Count Act, which has the crazy rules for how Congress counts the Electoral College votes. We had the 160 or so Republicans who objected to the votes in Pennsylvania and Arizona for no good reason. We need to change those rules before 2025 because we’re going to have lawless legislators who are not going to follow what the actual election results are. We need to make those changes. That’s got to be at the top of the agenda. I love the Manchin compromise. But it’s not the most important thing that we need to do right now.
And it’s not the end. But at the same time, we’re waiting on a couple of decisions from the Supreme Court. There’s a lot of concern that these decisions will further erode voting rights. Can you explain these cases and what you’re waiting to hear about?
There are two pending cases that I’m watching closely. One is called Brnovich v. Democratic National Committee. What’s at issue there is a part of the Voting Rights Act that’s different from preclearance part that we talked about earlier. This time, it’s about a part of the Voting Rights Act called Section 2, which says that minority voters should have the same opportunity as others to participate in the political process and elect representatives their choice. That language was crafted in 1982. We learned in 1986, in a case called Thornburg v. Gingles, what that means in the context of redistricting—requiring the creation of some of these majority-minority districts. We don’t know from the Supreme Court what it means in the context of what have been called “vote denial laws,” which make it harder for people to register or to vote. And lower courts have weighed in.
So, like only having voting during business hours.
Sure. The United States Court of Appeals for the 5th Circuit, which is the most conservative appeals court in the country, ruled that Texas has a very strict voter ID law that violated Section 2. Texas tweaked it, made it a little bit less strict, and then the 5th Circuit upheld it under Section 2.
Section 2 is a tool that’s been used over the past few years in the lower courts as a way to rein in some of the most egregious forms of voter suppression. But the Supreme Court hasn’t told us what Section 2 means and how tough it is. So we’re going to know whether federal Voting Rights Act protection is going to be meaningful or not over the next few years based on what SCOTUS does—it’s the most important voting rights case the Supreme Court’s going to decide since Shelby County in 2013. So that’s the bigger of the two cases. I’m really nervous about that. I think Democrats never should have brought this case. The last place you want to try to get expanded voting rights is in the Supreme Court. But Democrats have been very aggressive about bringing this case.
The other rule that was challenged is one that prevents so-called ballot harvesting, which is the idea that you can have third-party collection of absentee ballots. This is controversial: It’s allowed in some states but not in other states. The question really is, is this something that can prevent fraud? And we do have cases where fraud occurred with ballot harvesting, when a 2018 congressional election had to be redone. But is that a voting rights violation when there actually is a risk of fraud? I think that the Supreme Court, maybe unanimously, is going to reject the Democrats’ arguments. But the real important thing is not whether Democrats win or lose this particular case, but what the standards are going to be.
So just to sum up, we’ve got this big voting rights bill in the Senate that’s dead. The Supreme Court may be about to hobble the Voting Rights Act, but we’re not sure how. And the possible corrective to whatever that ruling might be—the John Lewis Act—is still in the House, still chugging along. We also have state legislatures passing bills to restrict when and how people can vote. You’re frantically warning we need to do something, but it doesn’t feel like we’ve gotten very far, even though it feels like all of the motion is in the direction of restricting access to the ballot, not opening it up.
Well, there are some states—even Kentucky, a Republican state—that are working in a bipartisan way to make it easier for people to vote. I think there are a lot of election officials working on ways of improving the competence of the system. But I think the way you need to think about it is that there are different levers that can be used to try to deal with both the question of voter suppression and election subversion. And we’ve got to use all of them.
One of them is the Department of Justice. Attorney General Merrick Garland said they’re going to double the staff of the Civil Rights Division, and they’re going to go after voting cases. So let’s see them go after this crazy audit in Arizona. Let’s see them bring lawsuits under Section 2, assuming that’s still preserved after Brnovich, and go after some of these states. This DOJ is fighting state by state over these rules. States are passing some bad rules, but there’s pushback. The business community pushing back. Democrats are pushing back. Democrats walked out and really stalled things in Texas. So there’s this hand-to-hand combat in each state, and then there are state courts where you can fight. But ideally, Congress needs to step in.
You say the Texas folks walking out is a good signal, but the Texas legislators who walked out specifically said we need Congress to act now because we’ve laid all our cards on the table and done what we can.
There were two provisions in the Texas bill that didn’t pass that got attention. No. 1, a measure that would make it much easier to overturn election results by changing the burden of proof and changing the standard there. The Republicans are now not going to include that in their bill, according to our reporting. No. 2, no voting on Sundays, when in the mornings Black voters would often go to church and then go vote in early voting drives. They’re now taking that out too. I’m not saying these bills are good, but I’m saying it’s not all or nothing, and you can fight state by state. So even without congressional action, there are ways to try to fight this. And, of course, political organizing matters, agitating for transparency. It might mean that people are going to have to be vigilant over the next few years, regarding attempts to try to to change who runs election boards. That’s not the ideal way to do it. But that’s all we’ve got. We’ve got to fight with the tools we have.