Rick Hasen calls this kind of thing voting wars, the extension of partisan conflict into the voting process. Last week, the California Secretary of State certified a ballot initiative for circulation (meaning its sponsors can begin to collect signatures) that would require every California polling-place voter to present a government-issued photo identification and every postal/absentee voter to include information from a government-issued identification (e.g., the last four digits of a Social Security number) in order for their vote to be counted. Never mind that the evidence for the kind voter fraud this requirement addresses is basically non-existent and that these kinds of requirements tend to discourage minorities, poor people, and the elderly from voting. Interestingly, this petition comes shortly after California enacted a new law (SB 360) that allows the state to experiment with new voting technologies (hello, internet voting!) in an effort to help more people to vote.
Here’s the official synopsis:
ELECTIONS. VOTER IDENTIFICATION REQUIREMENTS. INITIATIVE STATUTE. Prohibits citizen’s vote at the polls from being counted unless he or she presents government-issued photo-identification. Establishes provisional voting for citizens at the polls who fail to present government-issued photo-identification. Requires that provisional ballots and mail-in ballots be deemed invalid unless the accompanying envelope contains the citizen’s birthdate, and citizen’s identification number or last four digits of driver’s license, state identification card, or social security number. Requires that election officials verify this information prior to opening or counting ballot. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: Increased local government elections costs and decreased state fee revenues, potentially in the range of tens of millions of dollars per year. Potentially increased state funding (about $100 million) to local governments, offset by an equal amount of decreased state funding to local governments in future years. (13-0039.)
Be sure to look for it at a supermarket or mall near you. Then, walk away without signing the petition.
The Senate is currently debating whether to impose the “nuclear option” on presidential nominees for executive branch offices and for nominees to the district and appellate courts. Nominees to the Supreme Court would, for now, still be subject to the filibuster. Senate Democrats threatened to make similar changes at the start of the current Congress and again over the past summer. (See here for a quick summary of the timeline.) Each time, however, they were able to reach a deal with the Republicans to allow some nominations to proceed without changing the rules.
While there will be protests that Senate Democrats have broken the rules if they do restrict the use of the filibuster (this is currently Mitch McConnell’s favorite talking point), most observers agree that it can be done. Gregory Koger, for example, writes:
Bottom line: a simple majority has—and has always had—the power to restrict filibustering if senators are willing to take extreme measures to achieve their goals. Although parliamentary rules are discussed as if they are LAWS (with “rules” and “precedents” and “rulings from the chair”) in the final analysis the rules can be interpreted however a majority of the legislature prefer.
The basic logic of filibuster reform is this: Is it worth enough for me today, as I sit in the majority, to lose the filibuster in the future should my party become the minority? Am I willing to give up the potential to obstruct in the future so that I can get my way today? (Yes, there are reputation and potential electoral costs that I will incur if I change the rules, but these are relatively minor. PR wars happen all the time over bigger issues that have little to no effect on elections.)
It’s unclear what the outcome of this change would be. Would Senate Republicans follow through on the MAD (mutually assured destruction) aspect of the nuclear option and grind the Senate to a complete halt by obstructing everything else? Honestly, the reason the Senate Democrats are willing to even discuss the nuclear option is that over the last five years the Republicans have already largely adopted this policy. Yes, there is more that could happen in the way of obstruction, but the level of Republican obstruction has become so great that Democrats feel it is now worth paying the price.
I do think, however, that any change in the filibuster today would signal the beginning of the end of the filibuster has we have known and loved it. If it is okay to change the filibuster today because of minority party obstruction of nominees, it becomes easier to change the filibuster tomorrow because of minority party obstruction of a bill.
BTW, my go to sources for analysis of any such proposal are Sarah Binder and Gregory Koger, both of whom have written extensively on the filibuster (see here, here, and here for examples of Binder’s work and here, here, and here for examples of Koger’s work). They don’t always agree on their analysis.