Democrats' Voting Reform Proposals Must Be Enacted, but Even That Might Not Be Enough
by Neil H. Buchanan
This week, Senate Democrats officially proposed their version of the For the People Act, which has already passed the House as H.R. 1. That bill would substantially de-fang the two anti-democracy strategies that Republicans have been abusing for years: gerrymandering and voter suppression. In 2021, both of those strategies are already being pushed even further by Republicans, as they plan to take away even more House seats when adopting legislative maps in response to the 2020 census, and as Republicans in state legislatures across the country advance an onslaught of voter suppression laws.
There are many moving parts in the Republicans' long-running strategy to disenfranchise non-Republican voters, one of which was Donald Trump's extensive, bare-knuckled effort to rig the census. Running through the full list of Republican affronts to representative government would be both too time-consuming and beside my point here.
Nonetheless, it is worth bearing in mind that the Republicans have been absolutely shameless and relentless in pursuing their overall strategy, including voter purges (which were later blessed by the Supreme Court's movement conservatives), Texas's extreme limitation on voter drop boxes in 2020 (which, oh by the way, were imposed by that state's governor and approved by its supreme court, with no input by the state legislature), and on and on. There has never been anything particularly subtle about any of this, and some Republicans now openly defend their actions as being necessary to remain competitive in elections, while others now readily admit that they think that some votes (that is, voters) are of higher "quality" than others.
This is an epic struggle, the outcome of which will determine whether we continue to enjoy even the hobbled form of democracy that has survived Republicans' attacks until now. Or will it? Is it possible that the die is already cast, that the Democrats and representative democracy itself are irreversibly doomed? It would be sad if the answer to that question were even "possibly." Unfortunately, it is worse, because the answer is "probably."
That is, although we are fortunate that Trump's 2020 defeat was not reversed by politicians or insurrectionists, it is hard to see how this will last -- even if Democrats do everything that they could possibly do right now.
Four years ago, in the aftermath of Trump's eye-of-the-needle non-majority win in the 2016 election, I wrote with palpable panic that Democrats' sole goal should be to preserve competitive and fair elections. In "The Democrats Now Have One, and Only One, Priority," for example, I wrote this:
"If the Democrats are to have a future, however, they have to focus exclusively on making elections small-d democratic.
"And when I say exclusively, I mean that quite literally. In a recent column, I described how the Democrats could use their limited power (mostly in the Senate) to extract some concessions from Trump that might do some good. My counter-intuitive argument was that Democrats should be willing to resist even policy proposals that they otherwise support unless they win restoration of voters' rights in return."
Later in that column, I added that, "on any issue, Democrats must condition their support and cooperation on
changes in voting rights. If Trump were to offer concessions on any
other issue -- reproductive rights, environmental policy, the minimum
wage, or anything else -- Democrats must not be tempted to think that
they are getting a good deal."
In some ways, that column is quaint, written as it was at a time when it seemed possible that Republicans would not cooperate with Trump if he deviated from conservative orthodoxy and that Democrats might find issues, such as infrastructure, on which they might find common ground with Trump. We now know that Republicans quickly became the party of "anything Trump wants," while Trump's repeated announcements about "infrastructure week" became a pathetic punch line.
In-the-moment political details aside, however, the major problem facing the Democrats four years ago was that they had no direct power to do anything. The state legislatures that had been taken over by Republicans were being gerrymandered out of Democrats' reach, and in North Carolina, state-level Republicans stripped powers from the incoming Democratic governor, a strategy that they soon replicated in other states. Meanwhile, Trump was moving into the White House, Paul Ryan was Speaker of the House, and Mitch McConnell was the Senate Majority Leader. Even trying to describe a way for the Democrats to exert any power at all was a challenge.
Cut to today. The big discussion, as anyone even slightly paying attention knows, is whether Senate Democrats will use the power that they possess and actually pass democracy-protecting legislation. That is, 50 votes plus Vice President Harris are enough to pass any bill that the Democrats want to pass, albeit with the intervening step of changing internal rules to prevent continued minoritarian sabotage by McConnell's gang.
It is abundantly clear that Democrats must do this. If they do not, Republicans will run the table in 2022 and 2024, taking back both houses of Congress. For example, Senator Raphael Warnock's less-than-one-percent win in the Georgia runoff on January 5 only qualified him to finish a term that began in 2017, which means that he is already up for reelection next year. So is Mark Kelly of Arizona. Both of those states are at the forefront of Republicans' frenzied efforts to take away voting rights from Democratic-leaning voters.
Add in the historical record in midterm elections, plus gerrymandering, and the House also cannot be held without Democrats seizing this moment.
Nothing I say here, therefore, should be read to suggest that the Democrats should not immediately do everything necessary to change Senate rules (altering, suspending, or eliminating the filibuster) to pass the necessary election-saving laws. There is no question that failing to do so would be a game-over moment for the U.S. as a viable two-party democracy. If Senators Joe Manchin and Kyrsten Sinema, or any other holdouts, cannot be brought around, they will doom themselves and the country to irrelevance and ultimately autocracy.
My only question, as I wrote above, is whether even doing the right thing now would be enough. The states that Republicans already control are not seriously in play (Florida and Texas, most prominently, having become less competitive in 2020 than in 2016). If Beto O'Rourke could not come closer than 2.6 percentage points to the repellent Ted Cruz in 2018 -- almost a 215,000-vote spread -- there is no reason to think that Texas will become more fertile ground for Democrats in statewide races there in the future. Democrats hope to pick up open seats next year in Pennsylvania, North Carolina, and Ohio, but only the first of those seems even plausibly within reach. Could they knock off Ron Johnson in Wisconsin? In a sane world, sure. In a midterm election with votes suppressed in a swing state, probably not.
And if the House and Senate flip to Republicans, it does not even matter what happens in certain states in the 2024 election. Republicans will have the votes to be able to do on January 6, 2025 what they could not do this year: vote to reject any states’ electoral votes. Many (but still a distinct minority of) Republicans voted against that two months ago, knowing that the strategy was doomed. With majorities in both houses, why would they not “stop the steal”?
But it will not even need to come to that. Arizona's Republicans are already pushing forward a bill to do what I predicted they and their cohorts nationwide would do after the 2020 election: make it possible for the state legislature simply to overrule the voters when appointing people to vote in the Electoral College. And that is only the most clumsy approach. I have predicted that Republicans in general are likely to pass laws giving their legislatures the power to execute a simple two-step: (1) announce that the election results are "irregular," and (2) appoint their own slates of electors.
It will not be, "We don't like what our voters did, so we're ignoring them," at least not openly. Instead, it will be, "We're very sorry to see that urban districts allowed people to vote who should not have been allowed to vote, so we have no choice but to say that the legislature must take matters into its own hands."
Notably, Arizona and Georgia Republicans can do this without even testing the Supreme Court's openness to misreading the Constitution to say that legislatures alone can directly appoint electors. All they have to do is pass legislation, with the signature of their Republican governors, that makes it unnecessary for people like Brad Raffensperger to face the tough choice of following the law or giving Republicans what they want. At that point, there would only be three remaining swing states, and Democrats would have to carry them all. If any of them elects a Republican governor, Democrats will be effectively locked out of the presidency.
Sounds pretty hopeless, no? It does not have to go that way, but it is difficult to see how to change the outcome. Again, it will be truly and completely hopeless if Manchin and others refuse to take seriously their responsibility to protect democracy -- and their own ability to get anything done. Even with the full pro-voting agenda in place at the federal level, however, the odds are long.
Long odds, however, are not impossible odds. Even with gerrymandering and voter suppression in full flower, Democrats took back the House in 2018 and the Senate in 2020. Most voters despise Trump, and if Democrats are both lucky and good, they will be able to defy the odds in 2022 and later by tying Republicans firmly to their disgraced leader and delivering for the voters in ways that actually win votes. Taking COVID seriously and passing the American Rescue Plan are a good start.
Even so, Republicans have been at this for so long, and Democrats have been so late in responding, that overcoming the now-ossified disadvantages will require something like pulling an inside straight flush. It will require massive voter registration and turnout efforts, essentially telling the voters targeted by Republican suppression efforts to try even harder, in a big F U to the party of bigotry. If Republicans continue to focus on Dr. Seuss, that will help Democrats as well.
The good news is that the January 6 insurrection most likely convinced everyone but the Republican base that everything has changed, and that the stakes are unmistakably high. The next few years will determine whether Democrats and others can save us all from losing everything.