The U.S. Senate is broken. Missouri’s talking filibuster could fix it

By
January 19, 2022
In Commentary, Defending Democracy

How can you keep the filibuster, which Manchin sand Sinema see as a vehicle for compromise, but also pass a voting rights bill whose main components have broad support? The answer is to adopt Missouri’s talking filibuster. (Samuel Corum/Getty Images)

U.S. Rep. Willard Duncan Vandiver coined Missouri’s motto during an 1899 Philadelphia speech. “I come from a state that raises corn and cotton and cockleburs and Democrats,” he said, “and frothy eloquence neither convinces nor satisfies me. I am from Missouri. You have got to show me.”

As a former state senator who still haunts the Capitol, I know how infrequently Missouri is the first state to adopt any policy. In the tradition of Congressman Vandiver, we want other states to “show us” that a policy can work before we embrace it.

But given the present preoccupation of national politicos — can U.S. Senate Democrats find a procedural adjustment enabling them to pass meaningful election reform? — it is, ironically, Missouri with something worth showing the nation: The efficacy of a talking filibuster.

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Since January 2021, 19 states have passed 34 laws to: reduce voting days, hours or drop boxes; limit absentee ballot requests; add identification requirements; restrict provisional ballots from incorrect voting places; or criminalize offers of water to voters in line.

In other instances, Republicans have neutered nonpartisan election officials (or specific officials overseeing elections, such as Georgia Secretary of State Brad Raffensperger).

Separately, 15 current Republican Secretary of State candidates — at least five of whom were at the Capitol last January 6 — have suggested that the 2020 election was stolen. Trump has already endorsed several in key swing states like Georgia, Arizona and Michigan.

And of course, President Trump tried to overturn 2020 election results in those states, not just through dozens of failed lawsuits but also by 1) summoning Michigan legislative leaders to the White House to suggest that they refuse certify the state’s presidential election results, 2) pushing the Arizona Senate to commission an elaborate election audit (which ultimately found no fraud) and, most famously, 3) telling Raffensperger that Georgia’s count was “off by hundreds of thousands of votes” and badgering him to “find 11,780 votes,” the precise number Trump needed to win.

In response to the aforementioned new laws, congressional Democrats have filed election reform legislation setting national standards to ease the registration and voting process.

In response to former President Trump’s alarming efforts, Democrats propose reforming the 1887 Electoral Count Act to ensure that a vice president cannot override a state’s election results as Trump exhorted Vice President Mike Pence to do.

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Unfortunately for U.S. Senate Democrats, 60 votes are necessary for cloture (the parliamentary move to end debate and call a vote), and so far, only one Republican has announced support for Democratic electoral reform legislation, leaving Democrats nine votes short.

Those accustomed to the Missouri Senate may reply: “Why are you worried about how to end debate when the U.S Senate hasn’t even started debating any of this?”

Great question. The reason the U.S. Senate has yet to start debate on voting rights is that 60 votes are necessary to overcome a filibuster on the motion to proceed with debate.

That’s because U.S. senators do not actually have to filibuster — that is, talk for hours on end, as Missouri senators have long had to do — in the way they once did.

Until 1970, U.S. senators had to actually speak to hold the floor and prevent a vote, so filibusters were rare spectacles reserved for the most polarizing legislation (i.e., civil rights), paralyzing the Senate and grinding the nation’s business to a halt.

Senate leaders tried to solve this by adopting a two-track system allowing bills threatened by filibuster to be temporarily set aside so that others could be debated on the floor.

But the cure proved worse than the disease: Now that anyone could derail a bill by merely threatening a filibuster, it became routine for any minority party member to seamlessly kill bills without consequence.

So what does this have to do with the current voting rights debate?

Despite Democrats’ persistent effort to nuke the filibuster to move legislation with 50 senators plus Vice President Kamala Harris breaking ties, Sens. Joe Manchin, D-W.V., and Kyrsten Sinema, D-Ariz., have consistently killed any hope of that happening.

Thus the conundrum: How can you keep the filibuster, which Manchin and Sinema see as a vehicle for compromise, but also pass a voting rights bill whose main components have broad support?

The answer is to adopt Missouri’s talking filibuster.

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Presently, all U.S. Senate Republicans have to do to start and maintain a filibuster is draft a one-sentence letter informing leadership of their objection.

That’s insane. Read more

Federal prosecutors file seditious conspiracy charges against Oath Keepers in Jan. 6 attack

By
January 14, 2022
In Defending Democracy, News

Ohio Supreme Court shows North Carolina the way in the fight against gerrymandering

By
January 13, 2022
In Commentary, Defending Democracy, News

If you get a chance, be sure to check out this morning’s story from reporter Susan Tebben of our fellow States Newsroom outlet, the Ohio Capital-Journal, detailing yesterday’s ruling from the Ohio Supreme Court striking down a set of gerrymandered legislative maps.

As Tebben reports, the court sided with challengers and directed that new maps be drawn within ten days:

In a ruling released Wednesday afternoon, the Supreme Court announced a 4-3 decision, saying the Ohio Redistricting Commission “did not attempt to meet the standards set forth” in the legislative redistricting process of the Ohio Constitution. The majority included Chief Justice Maureen O’Connor, often considered a swing vote on the decision.

“Having now seen firsthand that the current Ohio Redistricting Commission … is seemingly unwilling to put aside partisan concerns as directed by the people’s vote, Ohioans may opt to pursue further constitutional amendment to replace the current commission with a truly independent, nonpartisan commission that more effectively distances the redistricting process from partisan politics,” O’Connor wrote in her own opinion supporting invalidating the maps.

In response to the ruling, Alicia Bannon, Director of the Judiciary Program at the Brennan Center for Justice offered this assessment:

“Today the Ohio Supreme Court held the Ohio Redistricting Commission accountable to the constitution. The General Assembly maps entrenched a GOP supermajority and flouted clear partisan fairness requirements in the Ohio constitution – abuses that especially impacted Ohio’s Black, Muslim and immigrant communities. The commission is now tasked with drawing replacement maps. We will be watching to ensure that all Ohioans get the fair representation they are due.”

While Ohio’s process is somewhat different from North Carolina’s, at their core, the disputes in the two states are essentially indistinguishable. At issue is whether it is constitutional for those overseeing redistricting to rig maps so as to guarantee victory for a particular political party while effectively disenfranchising a large swath of the population — in particular people racial and religious minorities who have long been the targets of discrimination.

Indeed, North Carolina’s all-purpose GOP gerrymandering defense attorney, Phil Strach, argued for the losing side in Ohio.

This is from Tebben’s report:

The majority opinion also emphasized that the supreme court has the authority over the maps, should they need to oversee the process again. It also pushed back on an argument made by a few people during the public hearing process and from legislative leaders that partisan majority can be fixed by voting out those in the majority.

“The suggestion that the solution to unconstitutional partisan gerrymandering is simply to vote out its perpetrators is disingenuous,” the court wrote. “Partisan gerrymandering entrenches the party in power.”

Let’s fervently hope that the seven justices of North Carolina’s Supreme Court are inspired by this example as they go about reviewing the latest rigged maps in North Carolina over the coming weeks. As an on-the-mark Capitol Broadcasting Company editorial for WRAL.com put it this morning:

It is an essential element of a representative democracy in our state to assure every North Carolinian has a voice in their elected representative branches of government.

There is no doubt that these gerrymandered congressional and legislative district maps only look to give one political party a permanent strangle-hold on governmental power.

The North Carolina Supreme Court must uphold that the power resides in the people of North Carolina and not a self-perpetuating permanent majority in the legislature.

It must overturn this ruling, declare the maps unconstitutional and should appoint four former state Supreme Court justices – two Republicans and two Democrats – to draw the new lines.

Congressional Black Caucus calls for Senate action on voting rights

By
January 13, 2022
In Defending Democracy, News, Voting

Challenge filed against Cawthorn candidacy under anti-Confederate provision of 14th Amendment

By
January 10, 2022
In Defending Democracy, News

Rep. Madison Cawthorn

In case you missed it, the national nonprofit group Free Speech For People is representing a group of North Carolina voters who are challenging the candidacy of Rep. Madison Cawthorn for reelection to Congress under a provision of the 14th Amendment designed to prevent ex-Confederates from serving in public office. A high-powered team of North Carolina attorneys, including two former state Supreme Court justices, have signed the challenge.

Cawthorn derided the complaint, tweeting: “Left-wing activists are trying to stop me from fighting for YOU THE PEOPLE! I won’t be stopped. Help me fight back!”

The following was posted to the Free Speech For People’s website today:

North Carolina Voters Challenge Rep. Madison Cawthorn’s Candidacy for Reelection Under Fourteenth Amendment’s Insurrectionist Disqualification Clause

First Such Challenge to Candidate Eligibility Filed Since the Reconstruction Era

RALEIGH, NC – A group of North Carolina voters has filed a legal challenge to U.S. Representative Madison Cawthorn’s 2022 candidacy. The challenge, filed before the North Carolina State Board of Elections, alleges that Cawthorn is constitutionally disqualified from public office under the Fourteenth Amendment to the U.S. Constitution based on reasonable suspicion that he helped facilitate the January 6, 2021 insurrection.  The voters are represented by Free Speech For People, a nonpartisan, non-profit legal advocacy organization with constitutional law expertise, which is serving as lead counsel in the matter; Wallace & Nordan, a North Carolina law firm specializing in election law; and Robert F. Orr, a former Republican Justice of the North Carolina Supreme Court.  James G. Exum, Jr., a former Chief Justice of the North Carolina Supreme Court, serves as Of Counsel in the matter.

Section Three of the Fourteenth Amendment, known as the Disqualification Clause, provides: “No Person shall be a Senator or Representative in Congress. . . who, having previously taken an oath, as a member of Congress . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” The purpose of the Disqualification Clause, passed in the wake of the Civil War, is not to punish the oathbreaker but rather to protect the country. No criminal conviction or prior adjudication is required under the Disqualification Clause, although Cawthorn would be able to seek judicial review of an adverse decision.

“The coordinated and violent January 6 attack on the United States Capitol in an effort to prevent Congress from certifying the presidential vote was an insurrection against the United States. The Constitution disqualifies from public office any elected officials who aided that insurrection,” said Ron Fein, Legal Director of Free Speech For People. “As set forth in our complaint, the publicly available evidence, including Representative Cawthorn’s own statements and reports that he or his office coordinated with the January 6 organizers, establish reasonable suspicion that Representative Cawthorn aided the insurrection, thereby disqualifying him from federal office. We look forward to asking him about his involvement under oath.”

Under North Carolina’s candidacy challenge statute, any registered voter in his district may challenge his candidacy based on “reasonable suspicion or belief” that he “does not meet the constitutional or statutory qualifications for the office.” Once a challenge is filed, the burden of proof shifts to the candidate, who “must show by a preponderance of the evidence . . . that he or she is qualified to be a candidate for the office.” The statute authorizes “depositions prior to the hearing, if requested by the challenger,” and “subpoenas for witnesses or documents . . . including a subpoena of the candidate.” The challengers intend to depose Cawthorn and members of his staff—something that the U.S. House January 6 Select Committee has not yet done. Read more

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