All About the Filibuster

What is the filibuster?

The filibuster is a parliamentary tactic used to delay action on a legislative bill by talking a great length. The use of this tactic dates back to the Roman Senate which required all business be concluded by nightfall, and there are recorded instances of senator Cato the Younger speaking about a subject in question until dark in order to delay a vote.

In the US Senate, a Senator could filibuster by talking or reading about anything he or she desires for as long as they desire and can stay standing. In 1917 the Senate passed the Cloture rule to limit consideration of a pending proposal to thirty hours and a two-thirds majority vote in order to end a filibuster. In 1975 the Senate reduced the number of votes required for cloture from two-thirds to three-fifths of all senators duly chosen and sworn, or 60 of the 100-member Senate.

The filibuster is considered a “veto” measure in which a minority or an individual can block the majority. Ideally these measures are reserved for issues in which rights or fundamental interests are in danger by the majority. 

The filibuster is not included in the US Constitution.

How does the filibuster threaten voting rights?

There are two pieces of voting rights legislation currently pending in the Senate: the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. These voting rights laws would enable more Americans to participate in our democracy with greater ease and equality. Those interested in the filibustering of these laws are the politicians who can’t win elections under these fair and equitable conditions.

Some laws are exempt from filibuster including budget reconciliation, trade promotion authority, the Congressional Review Act, the National Emergencies ActWar Powers Resolution, confirmations of executive branch nominees and judicial nominees, and the debt ceiling. We can protect voting rights by adding them to this list of filibuster exemptions.

Take Action to Protect Voting Rights against the Filibuster

Contact your Senators as well as Senators CollinsManchinMurkowskiPortman and Sinema and urge them to protect American democracy by protecting voter rights. Let them know: “NO FILIBUSTER FOR VOTING RIGHTS.”

Find out how to reach your Senators by calling 1-202-224-3121 or by visiting www.senate.gov/senators/senators-contact.htm.

The Outdated Notion of the Electoral College

Has an old compromise outlived its utility?

The Electoral College was created in 1787 in Philadelphia at a constitutional convention. At that time no other country in the world directly elected its chief executive and the Founding Fathers were forging new policies, free of tyrannical kings and despots.

Delegates debated for months, searching for a solution that would avoid Congress being directly involved with picking a president, avoid a strictly popular vote (one argument being that 18th-century voters would not be knowledgeable about the candidates, especially in rural areas), and avoid a dangerously powerful, populist president.

The delegates landed on the compromise of the Electoral College: electoral intermediaries, or “electors,” each state, and those electors would cast the actual ballots for the presidency. But how many electors would each state get? More debate ensued.

In 1787 approximately 40% of people living in Southern states were enslaved Black people who could not vote. Southern delegates like James Madison of Virginia (where 60% of its residents were enslaved Black people) knew that if slaves were not counted amongst the population when assigning electors, Southern states would hold less power that those in the North and the compromise would not pass. This ushered in the controversial “three-fifths compromise” in which each enslaved Black person was counted as three-fifths of a resident when calculating representatives, electors and federal taxes.

An unpopular approach in modern times

To win a presidential election in the US, the candidate and his or her vice presidential running mate must capture 270 of the 538 total electoral votes. This approach has led to 5 instances of presidents being elected to office despite losing the popular vote, including 2 in recent history: John Quincy Adams (1824), Rutherford B. Hayes (1876), Benjamin Harrison (1888), George W. Bush (2000), and Donald Trump (2016).

According to a 2020 Gallup Poll, 61% of Americans favored amending the U.S. Constitution to replace the Electoral College with a popular vote system as the country was heading into the 2020 presidential elections – a 6% increase from the same poll in April 2019.

The poll further showed that the preference for electing the president based on the popular vote is driven by 89% of Democrats and 68% of independents. Only 23% of those who consider themselves Republicans share this view, with 77% of them supporting the current system of the Electoral College.

But Wilfred Codrington, an American legal scholar, associate professor at Brooklyn Law School, and a fellow at the Brennan Center for Justice posits that the adoption of the popular vote, and the abolishment of the Electoral College, should be a non-partisan issue. “There are millions of Republicans whose votes are wasted, just as there are millions of Democrats whose votes are wasted, because they live in states that are fully red or fully blue, or mostly red or mostly blue,” he says. “They’re being ignored. And I think that it’s in their interest to think about the popular vote as something that will make their political system more responsive to their interests.”

California’s Voter Bill of Rights

The Official Voter Information Guide for the California Primary Election on June 7, 2022 begins with the Voter Bill of Rights. It’s visually striking, consuming a whole page. Plus impressive details such as 3 ways to get a new ballot and another 3 ways to report illegal or fraudulent activity.

The Secretary of State really wants to make it easy for eligible citizens to vote. In a democracy, why wouldn’t you?

The California Voter Bill of Rights

Voter Bill of Rights

You have the following rights:

  1. The right to vote if you are a registered voter. You are eligible to vote if you are:
    • a U.S. citizen living in California at least 18 years old
    • registered where you currently live
    • not currently serving a state or federal prison term for the conviction of a felony
    • not currently found mentally incompetent to vote by a court
  2. The right to vote if you are a registered voter even if your name is not on the list. You will vote using a provisional ballot. Your vote will be counted if elections officials determine that you are eligible to vote.
  3. The right to vote if you are still in line when the polls close.
  4. The right to cast a secret ballot without anyone bothering you or telling you how to vote.
  5. The right to get a new ballot if you have made a mistake, if you have not already cast your ballot. You can:
    • Ask an elections official at a polling place for a new ballot,
    • Exchange your vote-by-mail ballot for a new one at an elections office, or at your polling place,
    • or Vote using a provisional ballot.
  6. The right to get help casting your ballot from anyone you choose, except from your employer or union representative.
  7. The right to drop off your completed vote-by-mail ballot at any polling place in California.
  8. The right to get election materials in a language other than English if enough people in your voting precinct speak that language.
  9. The right to ask questions to elections officials about election procedures and watch the election process. If the person you ask cannot answer your questions, they must send you to the right person for an answer. If you are disruptive, they can stop answering you.
  10. The right to report any illegal or fraudulent election activity to an elections official or the Secretary of State’s office.
Special Notice
  • Polls are open from 7:00 a.m. to 8:00 p.m. on the day indicated in the posted county Voter Information Guide.
  • Specific instructions on how to vote, including how to cast a provisional ballot, can be obtained from a poll worker or by reading the information mailed to you by your local elections official.
  • If you are a newly registered voter, you may be asked to provide appropriate identification or other documentation according to federal law. But please note that every individual has the right to cast a provisional ballot even if he or she does not provide the documentation.
  • It is against the law to represent yourself as being eligible to vote unless you meet all of the requirements to vote under federal and state law.
  • It is against the law to tamper with voting equipment.

If you believe you have been denied any of these rights, call the Secretary of State’s confidential toll-free Voter Hotline at (800) 345-VOTE (8683).

Proposed: National Voter Election Code

Please forward this to your network, especially to friends living in states where voter rights are threatened:

It behooves our Congress to support legislation to create a uniform National Voter Election Code to ensure that the same rules apply for every voter relating only to the time, place and manner of elections as per Section 1.4 of the US Constitution so that a voter in West Virginia has the same rules for access to the vote as a voter in CT or GA or TX.

Congress adopted a Uniform Commercial Code after states had enacted a hodgepodge of laws making commerce chaotic. Democracies elsewhere have the same standard for voting for its citizens. It is time for the USA to do the same.

Senate Bill 1 should be renamed the National Voter Election Law and passed immediately.

Alice Schaffer Smith
Executive Director, National Voter Corps
www.nationalvotercorps.org

My personal opinion

First, let me preface this by saying that – as a founding member of the National Voter Corps (an exclusively NON-partisan organization) – I am dedicated to the concept of One Person, One Vote, Every Vote Counted.

For me, voting is not – and should never be – a partisan issue; it is a (small d) democratic issue, and every American citizen should have the absolute right to vote, no matter the ultimate outcome of an election. That is the American way – a government OF the people, BY the people, and FOR the people.

All that said, our voting rights have been under assault for quite some time now. Voter suppression methods have been used extensively throughout this country.

Paul Weyrich, founder of the Heritage Foundation, among other things, once famously (or infamously) stated, and I quote (emphasis mine):

I don’t want everybody to vote. Elections are not won by a majority of the people. They never have been from the beginning of our country and they are not now. As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down.

My response to that is, quite simply, “I DO want everybody to vote.” When everybody votes, the will of the people is heard, and that is the meaning of democracy!!

Today, since the 2020 elections, efforts to suppress the vote have been increasing dramatically throughout many areas of our country. This must not be allowed to happen! At this time, we should all be redoubling – and redoubling again – our efforts to resist and overturn these voter suppression laws wherever and however it is necessary.

I encourage everybody (Republican, Democrat, Independent alike) to step up today and do whatever you can to promote full participation in our free and fair elections going forward, so that we may all enjoy the benefits of our system of government.

Jerry Weinberger, NVC Founding Member, Steering Committee Member; Citizen

In memory of Jerry Weinberger (1942- 2021), who started this blog.

You & The Voting Rights Battle of 2021

The Brennan Center for Justice recently published “Voting Laws Roundup 2021” (February 8, 2021) By their count, 33 states had proposed about 100 bills to restrict voting access versus 37 states that proposed about 400 bills to expand voting access.

It doesn’t sound too dismal, does it? Not until you read the details, some of which include:
• Eliminate no-excuse mail voting and eliminate drop boxes
• Require mail ballots to be notarized
• Allow the general public unobstructed access to observe absentee ballot processing and expand voter roll purges.
• Prohibit using student ID’s and require citizenship verification.

On the other hand, there’s legislation proposed to:
• Expand vote by mail and increase ballot drop boxes
• Improve “notice and cure” practices so voter errors can be corrected
• Expand return deadlines and start processing mail ballots early
• Allow same-day and automatic voter registration
• Restore voting rights to former prisoners

So, while state legislators battle over these changes, what can we – you and I – do to promote voting rights? Two thoughts come to mind.

First, make sure your representatives know how you and your friends are thinking. Thank those who have promoted rights and make sure voting rights opponents also know how you feel. Get your friends in other states involved, too.

Second, make the effort to understand the voters who believe and feel very differently from you. This is not the same as agreeing or coming to a compromise. Many excellent books and articles have appeared on how to listen carefully and ask questions that don’t make people angry or defensive. Adam Granth published an editorial, “The Science of Reasoning with Unreasonable People” in the New York Times (Jan. 31, 2021), subtitled “Don’t try to change someone else’s mind. Instead, help them find their own motivation to change.” See also Megan Phelps-Roper’s TED Talk from 2019 with “4 tips for talking to people you disagree with,” including different values.

We are all Americans and need to find something in common with fellow Americans, whether they think like us or not. I’d love to hear your ideas for more ways to bridge the divide that exists today.

COVID-19 Threatens Democracy, Too

How long can the primaries be postponed, and what will happen in November? Nine states have postponed primary elections due to the Corona virus.  (https://www.cnn.com/2020/03/16/politics/state-primaries-postponed-coronavirus/index.html.)

What will happen If the crisis lasts past the new election dates?  The U.S. has never cancelled federal elections before — even during WWII, soldiers were sent special vote-by-mail ballots if they didn’t have “absentee” ones. (https://americanhistory.si.edu/democracy-exhibition/vote-voice/keeping-vote/state-rules-federal-rules/soldier-vote.)

Alaska has seized this opportunity to convert to vote-by-mail, for the primary at least, and Maryland is mailing ballots for the special election for Elijah Cummings’s Congressional seat.  But most states don’t have the resources to switch to vote-by-mail – it’s expensive. The $2 Trillion stimulus package makes a start, but offers states only a small fraction of what’s needed. The League of Women Voters explains at https://www.lwv.org/newsroom/press-releases/covid-19-stimulus-package-falls-short-adequate-election-funding.  Another benefit of vote-by-mail is its paper trail.  No complex, online system is un-hackable. Tallies and recounts must have the ability to be audited.

Expense is one obstacle to vote-by-mail. The other is a tradition of voter suppression.  Some states (AL, AR, CT, MA, MO, NH, WV) require an excuse from all voters, and others (IN, KY, LA, MS, TN, TX, SC ) recognize seniors might have difficulties getting to their polling stations and don’t require them to provide an excuse. (https://www.voteathome.org/ ) The application process varies in difficulty by state, but is always easier for people with cars and the ability to take time off from work without losing wages. The process is clearly intended to discourage poor and minority voters.

A less expensive, but riskier option in the short term, is simply to extend early voting.  Allow enough time for voters to show up in manageable groups, during and after work, staggered by address or other identifier.  And make sure the polling station has enough voting booths and volunteers with masks and gloves to avoid crowding.  Long term, it’s more economical to offer vote-by-mail with centralized voting centers for assistance, and to register people automatically at motor vehicle and social services agencies.

What Can You Do?

Ask your elected representatives and your social media friends to support legislation to adequately fund upcoming elections. And volunteer with groups that promote voting rights and voter registration.  Here’s what your Registrar of Voters should be doing to promote voting according to the League of Women Voters https://www.lwv.org/blog/10-things-elections-officials-can-do-safeguard-our-elections-spring-summer-and-fall?utm_source=newsletter&utm_medium=email&utm_campaign=033020 and the Brennan Center https://www.brennancenter.org/our-work/research-reports/estimated-costs-covid-19-election-resiliency-measures.