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      How a Defunct Federal Provision Helped Pave the Way for New Voting Restrictions

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      Curbs on drop boxes, tougher ID requirements and purges of voter rolls would have been weakened, or never even passed, if a federal oversight system had been in place.Georgia toughened identification requirements for absentee voting. Arizona authorized removing voters from the rolls if they do not cast a ballot at least once every two years. Florida and Georgia cut back sharply the use of drop boxes for mail-in ballots.All of these new voting restrictions would have been rejected or at least softened if a federal civil rights protection from the 1960s were still intact, experts in election law said.For decades, the heart of the landmark Voting Rights Act of 1965 was a practice known as preclearance, largely detailed under Section 5 of the statute. It forced states with a history of racial discrimination to seek approval from the Department of Justice before enacting new voting laws. Through preclearance, thousands of proposed voting changes were blocked by Justice Department lawyers in both Democratic and Republican administrations.In 2013, however, Section 5 was hollowed out by the Supreme Court, as Chief Justice John G. Roberts Jr. wrote in a majority opinion that racial discrimination in voting no longer constituted a significant threat.As Republican-led state legislatures have tightened voting rules after the 2020 election, new restrictions have been enacted or proposed in four states that are no longer required to seek approval before changing voting laws: Georgia, Arizona, Texas and Florida. Those new restrictions would almost certainly have been halted, stalled or altered had Section 5 still been in use, according to interviews with former federal prosecutors and a review by The New York Times of past civil rights actions by the Justice Department.“There’s nothing subtle about what they’re trying to do,” said Tom Perez, the former head of the Justice Department’s civil rights division and a former chairman of the Democratic National Committee. “If Section 5 were still around, those laws would not see the light of day.”The restoration of preclearance is now at the center of a debate in Congress over the passage of federal voting legislation.On Tuesday, the House passed the John Lewis Voting Rights Advancement Act, which would restore preclearance in several states, among other changes. Attorney General Merrick B. Garland has urged Congress to revive preclearance, but Senate Republicans oppose such a move, and a filibuster in the Senate threatens to sink the bill before it can reach President Biden’s desk.President Lyndon B. Johnson greeted Martin Luther King Jr. after signing the Voting Rights Act into law in August 1965.Lyndon B. Johnson LibrarySection 5 covered nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — and several counties in New York, Florida, California, South Dakota and North Carolina.Many changes sailed through the Department of Justice during the years of preclearance. Still, thousands of proposed voting laws and rules were found to be discriminatory. From January 1982 to July 2005, Justice Department lawyers filed 2,282 objections to 387,673 proposed voting changes under Section 5, according to a study by the University of California, Berkeley, School of Law.Again and again this year, states have enacted voting restrictions that closely track measures that were flagged and rejected years ago under preclearance.In Georgia, a law that toughened ID requirements for absentee voting will have a disproportionate effect on Black voters, who make up about a third of the electorate. More than 272,000 registered voters lack the forms of identification that are newly required to cast absentee ballots, according to a study by The Atlanta Journal-Constitution. More than half of them are Black.“If you have a voter-ID law where a lot of people don’t have one of the IDs, that’s a red flag,” said Jon Greenbaum, chief counsel for the Lawyers’ Committee for Civil Rights Under Law and a former voting rights lawyer for the Justice Department under the Clinton and George W. Bush administrations.Mr. Perez, the head of the civil rights division from 2009 to 2013, recalled an Arizona bill that proposed barring third parties from dropping off absentee ballots on behalf of voters. The Navajo Nation protested that some of its communities were hours from the nearest mailbox, making the act of voting by mail an arduous one.The Justice Department pushed back at Arizona lawmakers in preclearance. “We asked them a series of very pointed questions because we had real concerns that it was discriminatory, and they withdrew it,” he said. “As a result of the questions we asked, Section 5 worked in that case. But once Section 5 was emasculated in 2013, they had free rein to enact it.”That bill, Mr. Perez noted, was similar to a new Arizona ban on ballot collection upheld in a recent Supreme Court decision.Republicans across the country have defended the new voting laws and denied they are restrictive, often repeating the mantra that the laws make it “easier to vote, harder to cheat.”Gov. Brian Kemp of Georgia called a Justice Department lawsuit over the state’s new ID requirements “disgusting” and a “politically motivated assault on the rule of law.”Republicans do not dispute that the current Department of Justice, under Mr. Garland, would have challenged the new laws under Section 5. But they argue that the Biden administration is focusing on the politics of voting rights and not on the merits of the laws.“Laws that would have likely been precleared in a previous Democratic administration would be easily objected to by the current Biden administration,” said Justin Riemer, the chief counsel at the Republican National Committee.He added: “And it is very apparent to us that their determinations would be politically motivated in stopping states from enacting reasonable regulations that protect the integrity of their election processes.”Six former leaders of the civil rights division under Republican presidents from Ronald Reagan to Donald J. Trump declined to comment or did not respond to requests to comment.The greatest power of Section 5, voting rights experts said, was as a deterrent.The burden of proof that laws were not discriminatory was placed on covered states: They had to show that the laws were not going to further restrict voting rights among communities of color.“A lot of these provisions would have never been enacted in the first place if Section 5 were still there,” Mr. Greenbaum said. “Because these states know that if they couldn’t disprove retrogression, it would go down in flames.”The recent law in Arizona that removed voters from the permanent early voting list if they do not cast a ballot at least once every two years caught the eye of Deval Patrick, who led the civil rights division during the Clinton administration and later was governor of Massachusetts.People rallied in support of the Voting Rights Act outside the Supreme Court in February 2013.Christopher Gregory for The New York TimesIn 1994, Mr. Patrick objected to a Georgia proposal that would purge registered voters from the rolls if they failed to vote for three years unless they reaffirmed their registration status. He said the Arizona law struck him as another example of purging.“I think purging is one of the more pernicious undertakings, and I say this as somebody who is preternaturally neat,” Mr. Patrick said. “It is easier in many states today to keep a driver’s license than it is to keep your voter registration.”Gov. Doug Ducey of Arizona, a Republican, insisted that the new law was about election integrity. Active voters would still get ballots, while resources would be freed for “priorities like election security and voter education,” he said in a video after signing the bill. “Not a single Arizona voter will lose their right to vote as a result of this new law.”Mr. Patrick also said the preclearance process had helped prevent changes in voting rules aimed at engineering a victory.He pointed to Georgia, where Mr. Biden won by fewer than 12,000 votes. Georgia’s new voting law prohibits the use of provisional ballots by voters who show up at the wrong precinct before 5 p.m. on Election Day. But “out of precinct” voters accounted for 44 percent of provisional ballots last year, by far the most common reason. Of 11,120 provisional ballots counted, Mr. Biden won 64 percent.“When the margin of victory was as slim as it was, the notion that the provisional ballots might not be counted because of some very technical and frankly trivial issue, that’s a problem,” Mr. Patrick said.Voting rights lawyers also liken new laws curbing the use of drop boxes to past attempts — blocked by the Justice Department under preclearance — to reduce the numbers of polling places or absentee-ballot locations.In 1984 alone, for example, Reagan administration lawyers objected to the relocation of a Dallas polling place to a predominantly white community from a largely Black one, and challenged bills in Arizona that would have reduced access to polling places by rotating locations and cutting operating hours.In Georgia, 56 percent of absentee voters in urban Fulton County and suburban Cobb, DeKalb and Gwinnett counties returned their ballots in drop boxes, according to The Atlanta Journal-Constitution. Under Georgia’s new law, those counties will now have just 23 drop boxes, compared with 94 during the 2020 election.And in Texas last year, with roughly a month left before Election Day, Gov. Greg Abbott directed counties to offer only one location for voters to drop off mail-in ballots.“So you had counties with four million people and it was one place essentially to drop off your ballot,” said Chad Dunn, a longtime voting-rights lawyer. “Those are provisions that would have been stopped immediately.” More

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      As Congress Recesses, Democratic Successes Do Not Include Voting Rights

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      Democratic leaders vow to make voting legislation the “first matter of legislative business” in September. But their path remains cluttered with obstacles.WASHINGTON — With deadlines looming ahead of next year’s midterm elections, the Senate adjourned on Wednesday for a monthlong recess with only the slimmest of paths left for passing federal voting rights legislation that Democrats hope can stop a wave of Republican state laws clamping down on ballot access.Before dawn on Wednesday, Senate Republicans blocked last-minute attempts to debate a trio of elections bills, but Democratic leaders vowed that more votes would be the “first matter of legislative business” when they return in mid-September. First up is likely to be a scaled-back version of the party’s far-reaching Senate Bill 1, the For the People Act, or S. 1, that Democrats believe will unite all 50 senators who caucus with them.“Let there be no mistake about what is going on here,” Senator Chuck Schumer, Democrat of New York and the majority leader, said just after 4 a.m. “We have reached a point in this chamber where Republicans appear to oppose any measure — no matter how common sense — to protect voting rights and strengthen our democracy.”But such outrage did little to clarify how the party plans to get around a wall of Republican opposition in the Senate that has blocked progress since June. Nor did it quiet some of the outspoken and well-financed activists demanding that President Biden and his congressional majorities do everything possible — including scrapping the Senate’s planned vacation and its legislative filibuster rule — to get the job done.Pressed by reporters later on Wednesday to outline how exactly Democrats would reverse their fortunes, Mr. Schumer said he was making progress by “showing very clearly to every one of our 50 senators that Republicans won’t join us.”“As I’ve said before, everything is on the table,” Mr. Schumer said.Advocates of voting rights legislation believe fleshing out Republicans’ opposition will help build a rationale for centrist Democratic senators like Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona to reverse course and support either changing the entire filibuster rule or creating an exemption for elections-related changes to pass with a simple majority, rather than 60 votes.“Biden and Senate Democrats need to tell us what their plan to pass S. 1 is,” said Nita Chaudhary, the head of programming at the liberal advocacy group MoveOn, “before it’s too late.”“We have reached a point in this chamber where Republicans appear to oppose any measure — no matter how common sense — to protect voting rights and strengthen our democracy,” said Senator Chuck Schumer, the majority leader.Tom Brenner for The New York TimesThe Census Bureau was expected on Thursday to share detailed demographic data with states, kicking off the final stages of the once-in-a-decade process of redrawing congressional districts. Under the current rules, Republicans plan to press their advantages in control of state redistricting processes to draw new maps that tilt the national playing field toward their own candidates, making it easier to retake control of the House next year.The For the People Act, which passed the House this spring, would end partisan gerrymandering by both parties by forcing states to use independent commissions to draw district boundaries. The bill would also mandate that states set up automatic voter registration, 15 days of early voting and no-excuse mail-in voting. It would require political groups to disclose the identity of their big donors.But Richard L. Hasen, an election law expert at the University of California, Irvine, said Democrats could soon lose their window of opportunity to change the course of the redistricting process and the 2022 election. In time, it could similarly become difficult to stop the effects of new voting laws in more than a dozen Republican states that experts say will make it harder for young people and people of color to vote.“If something passes after states have gone through those processes and the election is underway, it would be much less likely that any congressional requirement could go into effect before the 2024 elections,” Mr. Hasen said of the redistricting process.Still, Democratic leaders insist they are making progress and can pass elections legislation even as they try to sew up two vast infrastructure and social program bills in the fall.Mr. Manchin, the only Democratic senator who does not support the original For the People Act, appears to be on the cusp of endorsing a somewhat narrower alternative that he has spent weeks negotiating with fellow Democrats. The new bill is likely to maintain many of the pillars of the original legislation, but include for the first time a national voter identification requirement and lop off new ethics requirements and a public campaign financing program for senators.Mr. Manchin said this week that he was still trying to win Republican votes for the plan, an unlikely outcome. But his colleagues have another motivation: They believe that Mr. Manchin will be more determined to fight for — and potentially change Senate rules for — a bill he helped write and watched Republicans tank.Senator Joe Manchin III of West Virginia is the only Democratic senator who does not support the original For the People Act, but he appears close to endorsing a narrower alternative.T.J. Kirkpatrick for The New York Times“This is an iterative process,” said Senator Raphael Warnock, a Georgia Democrat pushing party leaders not to let the issue lapse. He acknowledged they were up against a “tight deadline.”The votes early Wednesday morning appeared to be intended to make precisely that point. After hours of debate over Democrats’ separate $3.5 trillion budget blueprint, Mr. Schumer tried to force debates and votes on the original For the People Act, and on narrower bills focused on redistricting and campaign finance disclosure using unanimous consent to waive the normal Senate procedures.Republicans blocked all three, which they said constituted an attempt by Democrats to usurp the states and rewrite election rules for their benefit.“This isn’t going to work,” said Senator Mitch McConnell of Kentucky, the Republican leader. “It isn’t going to work tonight, and it isn’t going to work when we get back.”Republicans have threatened to grind the Senate to a halt if Democrats ax the filibuster rule. Mr. McConnell also suggested that his vote on Tuesday for Mr. Biden’s $1 trillion infrastructure package was in part to show Ms. Sinema and Mr. Manchin — two of its lead architects — that the Senate could still function in a bipartisan way.So far, it has worked.Ms. Sinema told ABC’s “The View” last week that a rules change could backfire and allow Republicans to pass a nationwide ban on mail-in voting when they next control Congress. And in an interview this month, Mr. Manchin appeared to rule out any filibuster exemptions.But Democrats still believe the new state voting laws and Republican efforts to rack up new safely red House seats in the weeks ahead may help move the senators.“They are going to try to use the redistricting process to draw themselves into the majority, not only in the House of Representatives but the state legislatures,” said Eric H. Holder Jr., the former attorney general who leads the National Democratic Redistricting Committee.Mr. Holder said that as long as Congress passed legislation outlawing the practice by the fall, Democrats could probably use the courts to stop the new maps. If not, he suggested Republicans might be correct when they spoke of locking in “a decade of power.”“That’s what’s at stake,” he said. More

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      Senate Begins Budget Political Theater With $3.5 Trillion at Stake

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      Once again, the Senate will begin a marathon “vote-a-rama,” dealing with dozens of nonbinding amendments before the one vote that counts, passage of a $3.5 trillion budget blueprint.WASHINGTON — Some senators have tried to ban the process. Others simply say it’s the worst part of their jobs.Even Senator Robert C. Byrd, a West Virginia Democrat who created and fortified some of the chamber’s most complex rules before his death, warned the so-called vote-a-rama process could “send some old men to their deaths.”Still on Tuesday, as the Senate turned to a $3.5 trillion budget blueprint that begins the Democrats’ push to expand the social safety net, the tradition of considering hours upon hours of nonbinding budget amendments will once again get underway — with senators forcing politically sensitive votes on their rivals as campaign operatives compile a record for possible attack ads.Only one vote really matters: If all 50 Democrats and Democratic-leaning independents give final approval to the blueprint, Senate committees can begin work this fall on the most significant expansion of the safety net since the 1960s, knowing that legislation cannot be filibustered under the Senate’s complicated budget rules.But before that final vote, which looked set to come either late Tuesday or early Wednesday, senators were having to deal with a blizzard of advisory amendments, and like every vote-a-rama that preceded it, it was painful.“It’s a little bit like an extended visit to a dentist,” said Ross K. Baker, a professor of political science at Rutgers University. “The whole process is an exercise in ‘gotchas.’”The Budget Act limits Senate debate to 50 hours on a budget resolution, but over time the Senate has developed its vote-a-rama custom, which allows for an accelerated voting procedure on amendments even after the 50 hours have expired. In recent years, the practice has allowed just minutes of debate for each amendment followed by a short vote.In practice, any senator can prolong the process by offering new amendments for votes until he or she runs out of steam. The result is a procedural food fight with a silly name that does little other than keep Capitol denizens up past their bedtimes and cause twinges of political pain. (Vote-a-RAHM-a? Vote-a-RAM-a? Depends on the senator.)The amendments can range from the serious to the absurd. During a debate over health care in 2010, Senator Tom Coburn, Republican of Oklahoma, forced a vote banning coverage of erectile dysfunction drugs for convicted sex offenders as a way to try to embarrass Democrats who supported the legislation. That prompted Senator Max Baucus, Democrat of Montana, to condemn the amendment as a “mockery of this Senate.”But the power of the political “gotcha” is diminishing with overuse. This is the third vote-a-rama this year alone. During the last episode in March — the longest open vote in modern Senate history — the Senate entertained 37 votes on amendments. During February’s vote-a-rama, there were 41.Should Democrats successfully pass the blueprint and draft a multi-trillion-dollar package, a fourth vote-a-rama is expected in the fall.“The budget resolution is usually the platform for political theater, and both sides having votes that are designed to make a statement because none of it is binding,” said Senator Patrick J. Toomey, Republican of Pennsylvania, who plans to retire next year.Both parties have historically lamented the vote-a-rama process, but neither wants to give it up. Typically, the party in the minority — in this case, the Republicans — revels in the uncomfortable votes it can force upon the majority party that typically controls the chamber, its floor time and what gets voted on.Republicans hammered Democrats on Tuesday over the size of the spending package, the planned tax increases to pay for it and liberal proposals to rein in climate change, which they deride as part of the “Green New Deal.”Senator Bernie Sanders, who is in charge of the Senate Budget Committee, said his plan was simply “to defeat all of the poison pill amendments.”T.J. Kirkpatrick for The New York TimesSenators filed hundreds of amendments, including a list from Senator Josh Hawley, Republican of Missouri, setting up votes to, among other things, add to the budget 100,000 police officers and promote a “patriotic education in K-12 schools” that teaches “students to love America.”Senator Lindsey Graham of South Carolina, the top Republican on the Senate Budget Committee, had previously vowed “to ferociously attack” the Democrats’ plans. Senator Mitch McConnell of Kentucky, the minority leader, said on Tuesday that Senate staff members had processed hundreds of amendments and pledged that “every single senator will be going on the record over and over and over.”Democrats largely appeared sanguine before the whole exercise. Senator Bernie Sanders, the Vermont independent in charge of the Senate Budget Committee, said his plan was simply “to defeat all of the poison pill amendments.”“That’s the whole point,” said Senator Elizabeth Warren, Democrat of Massachusetts. “They want to try to make us take what they think will be votes that they can use in television ads. This isn’t about legislating. This is just about jockeying for political advantage.”“We’ll have to endure a certain amount of that,” she added, “but we’ll get the budget resolution passed.”Even Republicans acknowledged that, at least with the budget blueprint, it would ultimately be a fruitless endeavor to derail a proposal that Democrats said they had the votes for.“We just continue to have conversations with colleagues on the other side of the aisle, encourage them not to support it, but I just think we’re going to get rolled,” said Senator Joni Ernst, Republican of Iowa. “They’ll wipe the slate clean at the end of the process.”Occasionally, though, a binding vote can take place. Republicans, for instance, could try to insist the Judiciary Committee be cut out of the budget reconciliation process, thus blocking the inclusion of a pathway to citizenship for millions of undocumented immigrants. (But the committee’s inclusion also meant a wider array of amendments could be considered under Senate rules, given the committee’s expansive jurisdiction.)The votes also occasionally produce a moment of truth for politicians. After many Democrats hemmed and hawed over stating their views on a $15 minimum wage this year, a forced vote on an amendment during the vote-a-rama in March revealed seven of the chamber’s more centrist Democrats opposed the increase.Despite the political risks, Mr. Baker said the votes during a vote-a-rama did not typically end up substantially hurting political candidates. Constituents tend to judge their senators on major policy issues, not votes that fly by, often after midnight.“Those kinds of votes can prove to be problematic but in a torrent of amendments, I think it becomes part of the noise,” he said. “That doesn’t mean they’re not going to be scared about it.” More

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      Biden, Congress and the Eroding Separation of Powers

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      A curious constitutional drama unfolded in the nation’s capital last week. Having failed to pass a moratorium on evictions, members of Congress took to the steps of the U.S. Capitol to demand that President Biden impose one.For his part, Mr. Biden strode into the White House briefing room and suggested that the prerogative to make policy on the issue lay with Congress.Soon enough, though, Mr. Biden relented, and Democrats celebrated. As policy, it was a progressive victory. Constitutionally, it was both troubling and bizarre.The issue was not simply whether the moratorium was constitutional, though the federal courts have questioned the statutory authority the Centers for Disease Control and Prevention claimed. The underlying constitutional derangement pertained to the way members of Congress and the president were eager to endorse each other’s authority without exercising their own.Democrats might protest that they had no choice but to turn to the White House because Republicans would not support a legislative moratorium. That may be, but the framers would have expected the defense of legislative power to take precedence over a policy dispute.The framers assumed that each branch of government would maintain the separation of powers by jealously guarding its authority from encroachments by the others. The evictions episode was less tug of war than hot potato: Congress wanted the president to use executive authority, and the president wanted the legislature to legislate.Democrats are not the only ones refusing to defend legislative authority. Republicans denigrating the House investigation into the insurrection of Jan. 6 — a physical assault on one branch of government incited by another — are unwilling even to defend the institution bodily.The acid test of separation of powers is whether members of Congress are willing to assert their authority against a president of their own party. Democrats failed that on evictions, just as Republicans did by handing off authority to Donald Trump. Given this bipartisan consensus for presidential authority, it may be time to acknowledge reality: The concept of the separation of powers — which depends on members of Congress unifying to protect legislative power — has collapsed in the United States. We have become a de facto parliamentary system in which competing parties battle for executive power. The problem is that we have acquired all the vices of such a system but none of its virtues.A parliamentary system typically has the effects of discouraging demagogues and ensuring competence, by seasoning leaders on the journey from the backbenches to the ones at the front. By contrast, three presidents who served before Joe Biden — George W. Bush, Barack Obama and Mr. Trump — arrived in the White House as either newcomers or latecomers to national office. Parliamentary systems also feature vigorous debates with real consequences. Governments rise and fall on the basis of their legislative agendas. Debates in Congress are largely stagecraft, with actual governing being relegated to a vast executive branch empowered to turn vague laws into detailed policy.The primary vice of parliamentary systems is their incompatibility with the separation of powers. James Madison felt this separation was so important that the lack of it was “the very definition of tyranny,” even if concentrated powers were exercised benignly. Montesquieu warned that when executive and legislative power are mixed, “there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically.”The separation of powers should not be romanticized. The only president to rise fully above party was the first one, and George Washington took office before parties solidified. But even after that, the fact that presidents and members of Congress were elected by different means, with different institutional loyalties, still enabled them to curb each other’s abuses.There are almost no curbs now. One might say elections control presidents, but Mr. Trump’s efforts to undo the 2020 presidential contest, which culminated in Jan. 6, showed that check is fragile. In addition, a single official who can marshal the direct power of his or supporters may be particularly dangerous, as Mr. Trump’s incitement leading up to and on Jan. 6 also demonstrated.These are palpable risks today. Between elections, presidents essentially run American government. Republicans and Democrats in Congress play the auxiliary part of either supporting or opposing whoever occupies the White House. Congress generally cedes the initiative on legislation to the executive branch, reserving for itself the role of merely reacting to the president.This obsession with the presidency also crowds out other advantages the separation of powers should provide. Legislators are chosen geographically in the United States, which ought to mean they reflect not only local interests but also the nuances of diverse views about national politics. Instead, many elections at all levels are proxies for national issues that are increasingly seen as civilizational battles. When Americans vote for members of Congress today, they are largely voting for parties that increasingly operate in lock step. In 2020, 16 out of 435 congressional districts voted for different parties for the White House and House of Representatives. That is less than 4 percent of congressional districts, down from as much as 40 percent in the 1970s and 1980s.Also lost in the collapse of geographic representation is Madison’s definition of the representative’s role: to “refine and enlarge the public views.” That presumes both acquaintance with those views and the judgment required to align them with the public’s true interest.Legislative debates now rotate around the president, often because the presidency is seen as an instrument for defending or capturing a legislative majority. That is characteristic of a parliamentary system. But because one is either for or against the president, a system that orbits the White House strips legislators of their ability to exercise independent judgment from issue to issue.If legislative issues are simply symbols of presidential fortunes, we should expect partisan gridlock: Alliances will solidify around the presidency or the majority rather than shifting from issue to issue. Democrats and Republicans may be able to push a president slightly in one direction or another, or block him or her altogether, but the presidency remains the center of attention. The bipartisan infrastructure deal, for example, originated in negotiations not between members of Congress but between them and the White House.Finally, by empowering all three branches of government to check one another, the separation of powers forces the nation to look at issues from different angles: the immediate and parochial perspectives of representatives, the national view of presidents and the constitutional outlook of the courts.The problems with abandoning the separation of powers may be difficult to see if one supports the current president, but it should not take much imagination to contemplate why you wouldn’t like having the bulk of national powers being exercised by a president with whom you disagree. Presidents now sit atop vast administrative apparatuses. They could easily abuse this power, such as by rewarding friends and punishing adversaries. The point for Montesquieu and Madison was not whether they actually did, but whether they could. And the ability to abuse power often leads to the abuse itself.The deliberate adoption of a parliamentary system would still entail these risks. But it might at least have conferred some of that system’s benefits. As it stands — with Congress unwilling to unite against even a physical assault incited by the president — we have maintained the empty shell of the separation of powers around the core of a partisan system. The result is a system capable of abusing citizens but not governing them. It would be difficult to conjure a worse combination.Greg Weiner (@GregWeiner1) is a political scientist at Assumption University, a visiting scholar at the American Enterprise Institute and the author of “The Political Constitution: The Case Against Judicial Supremacy.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Don’t Be Fooled By Mitch McConnell’s Sudden Bout of Bipartisanship

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      Are we entering a new era of bipartisanship? On the surface, the news from Washington seems remarkably encouraging. The Senate is close to passing a $1 trillion bipartisan infrastructure bill, with $550 billion in new spending on everything from transit to highways to broadband to climate change mitigation. Political insiders are hailing the bill as a breakthrough, with the Senate poised, at last, to overcome the partisan gridlock that has ground its legislative machinery to a halt. Many thought that President Biden’s belief that he could get Republican votes was naïve, but he delivered. In a surprise, even the Senate minority leader, Mitch McConnell, voted to move the compromise to a vote.Of course, this is the same Mitch McConnell who said of Mr. Biden, “100 percent of our focus is on stopping this new administration.” The same Mr. McConnell who made sure Donald Trump’s impeachment did not result in conviction, who filibustered the bipartisan plan for a commission to investigate the Jan. 6 violent insurrection until it died, who kept all of his Republican senators in line against the American Rescue Plan early in the Biden presidency. And the same Mr. McConnell who said that he would not confirm a Biden nominee to the Supreme Court if Republicans recaptured the Senate in 2022.So why the reversal on infrastructure? Why dare the brickbats of Donald Trump after the former president bashed the effort and tried to kill it? Mr. McConnell has one overriding goal: regaining a majority in the Senate in 2022. Republicans must defend 20 of the 34 Senate seats up for grabs next year; there are open seats in Ohio, Pennsylvania and North Carolina; and Senator Ron Johnson, if he runs again, could easily lose his seat in Wisconsin. Attempting to block a popular infrastructure bill that later gets enacted by Democrats alone would give them all the credit. Republicans would be left with the lame defense of crowing about projects they had voted against and tried to block, something that did not work at all with the popular American Rescue Plan.You don’t have to be a Machiavellian to understand another reason Mr. McConnell was willing to hand Mr. Biden a victory on infrastructure: By looking reasonable on this popular plan, claiming a mantle of the kind of bipartisanship that pleases Democrats like Joe Manchin and Kyrsten Sinema and that mollifies suburban moderate Republicans in key states, Mr. McConnell can more easily rally his troops behind their goal of obstruction and delay for every other important Democratic priority, including the blockbuster reconciliation bill, as well as voting rights and election reform.For Mr. Biden, this bill is a political victory; the fact that he worked across party lines distinguishes him from his Republican predecessor, which should give the president a powerful appeal among independents and moderate Republicans. But for congressional Democrats, despite the true achievement of persuading 10 Republicans to sign on to an ambitious infrastructure plan, the road ahead is bumpy, winding and complicated.If this bill is signed into law, the Democrats will still need to face hard reality: This will be their last major bipartisan piece of legislation.Of course, there may be other issues below the partisan radar, like criminal justice reform and mental health reform, that can secure significant Republican support. But thanks to Mr. McConnell, everything else will face a wall of obstruction. Since the midterms will take all the focus off policymaking in Congress, the Democrats need to achieve democracy reforms and move on with the rest of their agenda using reconciliation. (The Senate majority leader, Chuck Schumer, will also be navigating another confrontation over the debt ceiling, but he might be able to include eliminating the ceiling within reconciliation, taking it off the table as a hostage once and for all.)The two key words are discipline and filibuster. Overcoming Mr. McConnell’s obstruction will require all 50 Senate Democrats to stick together, to swallow hard with necessary compromises — and of course, the same is true for House Democrats, who cannot afford to lose the votes of even four of their members. To achieve anything else will require a change in the Senate rules. It does not have to be elimination of the filibuster, or what Senator Manchin would define as a “weakening” of the rule. It will require a way to put the burden on Mr. McConnell and the minority instead of where it is now, entirely on Mr. Schumer and the majority.Norman J. Ornstein (@NormOrnstein) is an emeritus scholar at the American Enterprise Institute. His latest book, which he wrote with E.J. Dionne and Thomas E. Mann, is “One Nation After Trump: A Guide for the Perplexed, the Disillusioned, the Desperate and the Not-Yet Deported.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Senate Democrats Hold Hearing on Voting in Georgia

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      ATLANTA — Senate Democrats took their campaign for far-reaching federal voting rights legislation on the road to Georgia on Monday, convening a rare hearing in a state at the center of a national fight over elections.At a field hearing in Atlanta, lawmakers and voters decried the restrictive new voting law signed this spring by Gov. Brian Kemp, a Republican, as an attempt to disenfranchise Black and young voters and consolidate Republicans tenuous grip on power.“There is much talk about not being able to give food and water to voters on line, but the actual law is much more abhorrent than that,” said Representative Billy Mitchell, the chairman of the Georgia House Democratic caucus. “What I am most concerned about — and hope you come up with a solution for — is cheating umpires that these laws are creating.”But the hearing’s real aim is to sway a debate more than 500 miles away in Washington, where Democrats are trying to revive a stalled elections overhaul in the Senate to make it easier to vote and offset many of the changes Republicans have pushed through in states like Georgia.“If you just stay in Washington and get doused down and gridlocked out by our archaic procedures in the Senate, you lose sight of what you are fighting for,” Senator Amy Klobuchar, Democrat of Minnesota and the chairwoman of the Rules Committee, which is convening the session, said in an interview.An initial attempt by Democrats to debate their overhaul, the For the People Act, failed in the Senate last month in the face of unified Republican opposition. Now, Democrats are trying to retool, but it is unclear if their chances of success will improve as long as key moderate senators refuse to alter the Senate’s filibuster rule, which in effect gives Republicans veto power over their agenda.Party leaders are working with Senator Joe Manchin III of West Virginia, the most outspoken Democratic opponent of the measure, to draft a narrower compromise bill, which could come up for another vote in August or the fall. They are also readying additional legislation, named after the late civil rights icon John Lewis of Georgia, to strengthen the Voting Rights Act of 1965. That, too, could come to a vote in the fall.Given the likelihood that both those efforts would fall amid Republican opposition, Democrats have begun work to try to include more modest voting rights measures in the party’s $3.5 trillion budget blueprint, which they are working to muscle through the Senate on a simple majority vote.The hearing at the National Center for Civil and Human Rights here is the first time in two decades the Rules Committee has convened outside the Capitol. Ms. Klobuchar has said additional field hearings will follow.Among the witnesses are Sally Harrell, a Democratic state senator from suburban Atlanta; Helen Butler, the executive director of the Georgia Coalition for the Peoples’ Agenda; and José Segarra, a voter from south-central Georgia. Senator Raphael Warnock, whose improbable victory in a runoff election here in January delivered control of the Senate to Democrats, also addressed the panel.Republicans on the Rules Committee, who have fought to stymie Democrats’ election overhaul in the Senate, did not attend the hearing.“This silly stunt is based on the same lie as all the Democrats’ phony hysteria from Georgia to Texas to Washington, D.C., and beyond — their efforts to pretend that moderate, mainstream state voting laws with more generous early voting provisions than blue states like New York are some kind of evil assault on our democracy,” Senator Mitch McConnell, Republican of Kentucky and the minority leader, said in a statement. More

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      Biden Speaks on Voting Rights in Philadelphia

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      WASHINGTON — President Biden said on Tuesday that the fight against restrictive voting laws was the “most significant test of our democracy since the Civil War” and called Donald J. Trump’s efforts to overturn the 2020 election “a big lie.”In an impassioned speech in Philadelphia, Mr. Biden tried to reinvigorate the stalled Democratic effort to pass federal voting rights legislation and called on Republicans “in Congress and states and cities and counties to stand up, for God’s sake.”“Help prevent this concerted effort to undermine our election and the sacred right to vote,” the president said in remarks at the National Constitution Center. “Have you no shame?”But his words collided with reality: Even as Republican-led bills meant to restrict voting access make their way through statehouses across the country, two bills aiming to expand voting rights nationwide are languishing in Congress. And Mr. Biden has bucked increasing pressure from Democrats to support pushing the legislation through the Senate by eliminating the filibuster, no matter the political cost.In fact, the president seemed to acknowledge that the legislation had little hope of passing as he shifted his focus to the midterm elections.“We’re going to face another test in 2022,” Mr. Biden said. “A new wave of unprecedented voter suppression, and raw and sustained election subversion. We have to prepare now.”He said he would start an effort “to educate voters about the changing laws, register them to vote and then get the vote out.”The partisan fight over voting rights was playing out even as the president spoke, with a group of Texas Democrats fleeing their state to deny Republicans the quorum they need to pass new voting restrictions there.In his speech, Mr. Biden characterized the conspiracy theories about the 2020 election — hatched and spread by his predecessor, Mr. Trump — as a “darker and more sinister” underbelly of American politics. He did not mention Mr. Trump by name but warned that “bullies and merchants of fear” had posed an existential threat to democracy.“No other election has ever been held under such scrutiny, such high standards,” Mr. Biden said. “The big lie is just that: a big lie.”About a dozen Republican-controlled states passed laws this spring to restrict voting or significantly change election rules, in part because of Mr. Trump’s efforts to sow doubt about the 2020 results.Republicans, who have called Democrats’ warnings about democracy hyperbolic, argue that laws are needed to tamp down on voter fraud, despite evidence that it is not a widespread problem. They have mounted an aggressive campaign to portray Mr. Biden’s voting-rights efforts as self-serving federalization of elections to benefit Democrats.The president’s speech, delivered against the backdrop of the birthplace of American democracy, was intended to present the right to vote as a shared ideal, despite the realities of a deeply fractured political landscape.Democratic efforts to pass voting rights legislation in Washington have stalled in the evenly divided Senate. Last month, Republicans filibustered the broad elections overhaul known as the For the People Act, and they are expected to do the same if Democrats try to bring up the other measure — the John Lewis Voting Rights Act, named for a former Georgia congressman and civil rights icon — which would restore parts of the Voting Rights Act struck down by the Supreme Court in 2013.In a statement, Danielle Álvarez, the communications director for the Republican National Committee, said that Mr. Biden’s speech amounted to “lies and theatrics.” Republicans had unanimously rejected the For the People Act as a Democratic attempt to “pass their federal takeover of our elections,” she said.There were also concerns among more moderate members of Mr. Biden’s party that the legislation was too partisan. Senators Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona have publicly said they would not support rolling back the filibuster to enact it.But other Democrats see a worrying increase in efforts by Republican-led state legislatures to restrict voting, along with court rulings that would make it harder to fight encroachments on voting rights.A Supreme Court ruling this month weakened the one enforcement clause of the Voting Rights Act that remained after the court invalidated its major provision in 2013. Mr. Biden said last year that strengthening the act would be one of his first priorities after taking office; but on Tuesday, he sought to shift responsibility to lawmakers.“The court’s decision, as harmful as it is, does not limit the Congress’s ability to repair the damage done,” the president said. “As soon as Congress passes the For the People Act and the John Lewis Voting Rights Advancement Act, I will sign it and want the whole world to see it.”His rallying cry only underscored the impossibility of the task: Neither bill currently has a path to his desk.Activists who had wondered whether Mr. Biden would stake out a public position on the filibuster got their answer on Tuesday: “I’m not filibustering now,” the president told reporters who shouted questions after his speech.“It was strange to hear,” Eli Zupnick, a spokesman for the anti-filibuster group Fix Our Senate, said after watching the speech. “He did a great job of laying out the problem, but then stopped short of talking about the actual solution that would be needed to passing legislation to address the problem.”As Mr. Biden spoke in Philadelphia, the group of Texas Democrats had traveled to Washington, where they were trying to delay state lawmakers from taking up restrictive voting measures.Representative Marc Veasey, Democrat of Texas, speaking at a press conference with Democratic members of the Texas Legislature on Capitol Hill on Tuesday.Sarahbeth Maney/The New York TimesBoth measures would ban 24-hour voting and drive-through voting; prohibit election officials from proactively sending absentee ballot applications to voters who had not requested them; add new voter identification requirements for voting by mail; limit the types of assistance that can be provided to voters; and greatly expand the authority and autonomy of partisan poll watchers.In Austin, Republicans vented their anger at the fleeing group, and Gov. Greg Abbott vowed to call “special session after special session after special session” until an election bill passed. The handful of Democratic lawmakers who did not go to Washington were rounded up and ordered onto the Statehouse floor. Shawn Thierry, a Democratic state representative from Houston, posted to Twitter a video of a Statehouse sergeant-at-arms and a state trooper entering her office to order her to be locked in the House chamber.“This is not an issue about Democrats or Republicans,” Vice President Kamala Harris told the Texas lawmakers when she met with them on Tuesday. “This is about Americans and how Americans are experiencing this issue.”James Talarico, 32, the youngest member of the Texas Legislature, said the group of Democrats had gone to Washington, in part, to pressure Mr. Biden to do more.“We can’t listen to more speeches,” Mr. Talarico said. “I’m incredibly proud not only as a Democrat but also an American of what President Biden has accomplished in his first few months in office. But protecting our democracy should have been at the very top of the list, because without it none of these issues matter.”The restrictions in the Texas bills mirror key provisions of a restrictive law passed this year in Georgia, which went even further to assert Republican control over the State Election Board and empower the party to suspend county election officials. In June, the Justice Department sued Georgia over the law, the Biden administration’s first significant move to challenge voter restrictions at the state level.“The 21st-century Jim Crow assault is real,” Mr. Biden said as he listed the details of the Texas bills. “It’s unrelenting, and we are going to challenge it vigorously.”Zolan Kanno-Youngs More

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      In New Hampshire, Maggie Hassan May Face a High-Profile Fight

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      Senator Maggie Hassan, a former governor of her state, is working to burnish her centrist image without making political waves.MEREDITH, N.H. — At the Twin Barns Brewing Co., perched near the shoreline of Lake Winnipesaukee, Senator Maggie Hassan sampled some of the signature product on a recent afternoon, then chased it with a promise to fight for more reliable internet service, which the owners said they needed to maintain their customer base.“If you are a young professional and you’ve discovered over the 18 months of the pandemic that you don’t actually have to be in the office — you can work remotely — this is a perfect work-life balance,” said Dave Picarillo, co-owner of the brewery and restaurant, which has seen an uptick in business as people have decamped to New Hampshire’s Lakes Region during the pandemic. “But without broadband and cellular, that will never happen.”As she tried a tasty blonde ale, Ms. Hassan assured Mr. Picarillo and his partner, Bruce Walton, that she was on the case. She was part of a bipartisan group of senators who were working to speed a compromise infrastructure plan that included new broadband funding to President Biden’s desk — whether or not her party was able to push through a second, broader package of Democratic initiatives.“I think you’ve got to get things done when you have the opportunity,” said Ms. Hassan, a former two-term governor seeking a second Senate term.Ms. Hassan is the moderate Senate Democrat and potential swing vote who few people in Washington talk about. She does not make waves or grab headlines like Joe Manchin III or Kyrsten Sinema, her colleagues from West Virginia and Arizona who draw much of the attention as the centrists most likely to defect from their party. Her every utterance is not parsed for significance about what it means for legislative progress. Reporters don’t throng around her.And that’s no accident, she said: “I just like to keep my head down and get work done.”Yet while she tries to fly under the radar, what happens in Congress in the next few months as Democrats and Mr. Biden try to enact their ambitious agenda will probably do more to determine her future than either Mr. Manchin’s or Ms. Sinema’s. Unlike those two Democrats, Ms. Hassan will be on the ballot in a swing state next year, during a midterm cycle that is traditionally unkind to members of the president’s party.“I think she will, to a large extent next year, rise or fall with Joe Biden, his numbers and how New Hampshire voters will feel about the economy,” said Dante Scala, a political scientist at the University of New Hampshire.Even more than those factors, her political future could turn on whether Chris Sununu, the popular Republican governor and a member of one of the state’s most prominent political families, decides to answer the call from his party to jump into the race. He would be a formidable opponent and immediately transform the New Hampshire race into a marquee contest, placing Ms. Hassan among the most threatened incumbents as Democrats try to retain their extremely fragile hold on the Senate.“If the race is with Sununu — and I don’t know if it is Sununu — it is going to be a tough one,” said Thomas D. Rath, a former state attorney general in New Hampshire and a longtime Republican force in the state.Gov. Chris Sununu, a Republican and a member of a prominent New Hampshire political family, could challenge Ms. Hassan for her Senate seat in 2022.Pool photo by David LaneMr. Sununu, whose father was a former governor and White House chief of staff and whose brother was a U.S. senator, has not tipped his hand on whether he will run despite entreaties from Senator Mitch McConnell of Kentucky, the Republican leader, and others who believe he gives them by far the best chance of taking the seat as they battle for the majority. He has expressed some qualms about jumping into the Washington maelstrom, including losing the executive power that comes with being a governor to join a legislative body.“I’m a manager, I’m an executive,” Governor Sununu said last week on the New Hampshire Journal podcast. “There are very few of those in Washington,” he said, adding that he also has to determine, “is it the right path for my family? I have kids to put through college, and all that kind of stuff.”Still, the betting in both New Hampshire and Washington is that the governor, whose office declined an interview request, will make the race, finding it too hard to resist the opportunity.As for Mr. Hassan, she said the governor’s plans were not a factor in her own.“I don’t know, and it doesn’t really change my work,” she said last week when asked whether she thought Mr. Sununu would run. “I’m proud of what I’ve done and I will make my case to the people of New Hampshire.”While she may be low-key in Washington, Ms. Hassan has been a fixture in New Hampshire politics for almost two decades, serving in the State Senate as majority leader and twice winning races for governor before toppling Kelly Ayotte, the incumbent Republican senator, by just over 1,000 votes in 2016. Her allies say that Republicans have consistently underestimated Ms. Hassan, and will likely do so again.“She has got chops when it comes to winning tough races, and it has not just been one tough race,” said Kathy Sullivan, a former chairwoman of the New Hampshire Democratic Party. “She works very hard at it.”Republicans are already trying to paint Ms. Hassan as a loyal acolyte of Senator Chuck Schumer, the New York Democrat and majority leader. They say her low profile — one called her “invisible” — is a sign of ineffectiveness.“We think with the way things are trending with the Democratic Party moving hard to the left, the outlook for 2022 and potentially a very strong challenger that this is a very winnable race for us,” said T.W. Arrighi, a spokesman for the National Republican Senatorial Committee.Ms. Hassan has been a fixture in New Hampshire politics for two decades.John Tully for The New York TimesAs she prepares for a likely onslaught, Ms. Hassan is emphasizing her bipartisan record, hoping it resonates with the famously independent voters of New Hampshire. As governor, Ms. Hassan found ways to work with Republican-controlled legislatures to approve state budgets and expand Medicaid coverage. She said she was now trying to apply that same approach in the Senate.She has teamed up with Republicans on a variety of issues, including tax assistance for small businesses, money for rural broadband and a crackdown on surprise medical billing included in a major funding bill last year. Now she is part of the group negotiating a bipartisan public works bill that Mr. Biden has hailed as a breakthrough.“We think it is really important for the country to see where we have common ground and see us really trying to work across party lines,” she said.But the bipartisan package is just one piece of the equation facing Congress. Democrats also want to force through a much larger measure that includes an expansive array of costly proposals, using a special budget maneuver known as reconciliation to shield it from a Republican filibuster. Many top Democrats believe the two bills should be linked and approved only in tandem to assure that both pass.But Ms. Hassan appears ready to push forward with the public works bill even as the reconciliation plan takes shape — a stance that could put her at odds with some colleagues. She says Congress needs to strike while it can.“I think it’s important that when you do have agreement on something as major as this level of infrastructure, which we need so desperately, that when there’s common ground, you come together,” she said at the brewery.Ms. Hassan is generally supportive of a second bill to advance other elements of Mr. Biden’s plan, some of which she said would be “critical to building a foundation for a modern 21st-century leading economy,” but first she wanted to see what was in it. She has balked in the past at using reconciliation to accomplish far-reaching progressive priorities. She was one of seven Democratic senators who voted against including a $15-an-hour minimum wage in the nearly $1.9 trillion pandemic aid bill passed under reconciliation with solely Democratic votes and enacted in March.Despite the legislative difficulties ahead, Ms. Hassan said she and her colleagues were in position to get much of what they sought, with a bipartisan imprint on some of it as a bonus.“You know, there are always some white-knuckle moments,” said Ms. Hassan about the coming legislative drama. “But I’m feeling optimistic.” More