“It’s the greatest assault on voting rights,” President Biden said, “in the history of the United States — for real — since the Civil War.”
The situation is even worse in the Senate’s Democratic caucus. So far, it has been negotiating internally to muster the 50 votes required to end or mend the filibuster on voting rights legislation. Given the meager results, the public has every right to wonder if Democrats believe — “for real” — that they are rescuing the republic from ruin.
The fact that Republicans are secondary characters in this drama has not prevented them from adding foolish commentary. “This is not a federal issue,” Senate Minority Leader Mitch McConnell (Ky.) claimed, conveniently forgetting the 15th Amendment and 150 years of states’ efforts to prevent its full application.
Other Republicans complain that altering the filibuster for voting rights legislation would be an unprecedented weakening of minority rights in the Senate — leaving out the other 161 times since 1969 that the Senate adopted procedures to prevent a filibuster on specific measures, as counted by Molly E. Reynolds of the Brookings Institution.
Two other objections to filibuster reform hold a bit more water.
First, election laws recently passed by state legislatures are a mixed lot, ranging from meaningless to repugnant. As of early October, 19 states had passed 33 laws making it harder to vote, according to the Brennan Center for Justice. At least four of the 33 were accompanied by changes that made voting easier in some ways. In only four states — Georgia, Iowa, Texas and Florida — did legislatures pass omnibus legislation clearly designed to restrict the franchise. The problem with the preceding sentence is the “only.” Any list that includes Texas and Florida is not “only” anything.
A second objection is more telling. In a recent National Affairs essay, political scientists Daron R. Shaw and John R. Petrocik make a persuasive case that the level of voter turnout doesn’t help one party or another. “Put simply,” they conclude, “there is no evidence that turnout is correlated with partisan vote choice.” This sounds counterintuitive, but the point is relatively noncontroversial among political scientists. There is no good evidence that Republican attempts to restrict the franchise benefit Republicans in any predictable way. They certainly intend to cheat, but that doesn’t make them effective cheaters.
The challenge for Democrats on voting rights is that the measures they propose are only partially responsive to GOP recklessness. Republicans are not a threat to the republic because they want to ban water distribution in voting lines and drive-through voting. They are a threat to the republic because they have found a potentially fatal weakness in the constitutional order that they are perfectly willing to exploit.
In the final days of Donald Trump’s presidency, amid the chaotic carnival of sedition, Trump counsel John Eastman and Assistant Attorney General Jeffrey Clark set out elements of a plan for a constitutional coup. The U.S. president, as every schoolchild should know, is chosen by a vote of the electoral college. And the Constitution, as every slimy Trump lawyer seems to know, gives state legislatures the power to determine how electors are chosen. In Trump’s dream world, Republicans would have cried electoral fraud and Republican legislators would have ignored the popular vote in crucial states and certified Trump electors. The whole mess would ultimately have been decided by the absurd constitutional device of giving each delegation in the House of Representatives one vote — which would have exaggerated the dominance of red states with small populations even more than the electoral college does. And voilà: reelection.
The plan didn’t come close to fruition, not least because some Republican state officials refused to cooperate. Plenty of election experts consider such a maneuver illegal and unconstitutional, but few deny its potential to create chaos. And Trump surely sees the last time as a dry run. He has made complicity in electoral lies and fraud the defining test of GOP loyalty.
What is the proper response when an authoritarian has found a constitutional self-destruct button and can’t wait to press it? Surely this is a reason for Democrats to find a common approach that not only modifies Senate rules to pass the Freedom to Vote Act but also confronts the antidemocratic lawlessness at the heart of Republican ideology. A little more unity, urgency and clarity, please.
