Voting Is War, Part 2

In their latest ruling, the Supreme Court’s six reactionaries ignored the law in order to help their party’s candidates get elected. Paul Waldman of The Washington Post discusses the latest case in which the Court’s liberals are reduced to writing a “blistering” dissent:

To no one’s surprise, the Supreme Court’s six conservatives [No, radical reactionaries] on Thursday ruled for Republicans in a pair of key voting rights matters, upholding two Arizona voter suppression laws. It’s part of the long-running partnership between Republicans in the states, Republicans in Congress and Republicans on the Supreme Court to make sure that the rules of American elections are twisted and contorted to give the GOP every possible advantage.

At issue was a section of the Voting Rights Act (VRA), which was once the crown jewel of U.S. voting law and a foundation of political equality, that has been gutted by a Supreme Court unremittingly hostile to voting rights.

And the justices aren’t done, not by a long shot.

One of Arizona’s laws makes it a crime for most people to deliver someone else’s absentee ballot, a heretofore common practice of particular importance to Native Americans in the state, who find it challenging to vote given their wide geographic dispersion and slow mail service (but also used regularly by organizers in Black and Latino communities). The other law says that if you vote in the wrong precinct, the state will throw out your entire ballot, even the votes for races where the precinct is irrelevant (e.g., president).

The laws were challenged as violating the VRA because they disproportionately affect minority voters. As the plaintiffs pointed out, minority voters in Arizona are about twice as likely to mistakenly vote in the wrong precinct for a variety of reasons.

Did the Republicans who put that law in place understand that? Oh, you bet they did.

Section 2 of the VRA says statutes are invalid if they have the effect of harming people’s ability to vote on the basis of their race, even if you can’t prove that the party that passed it was doing so with racist intent. Whether that section of the VRA has any meaning in the wake of this decision is an open question.

The decision, written by Justice Samuel A. Alito Jr., argued that the system in Arizona offers ample opportunity for everyone to vote, even if it seems to fall heavier on some people, and concluded that the state’s interest in preventing voter fraud outweighs whatever overall disparate impact the law has.

The fact that voter fraud is almost entirely fictional did not disturb the justice.

In a blistering dissent [starting on page 45 of this PDF], Justice Elena Kagan wrote that the majority had essentially invented its own reading of the VRA, and accused the majority of pretending not to know that such state laws are occurring in a context where efforts to suppress minority voters continue.

“No one would know this from reading the majority opinion,” Kagan remarked.

Kagan’s disgust is appropriate. This case is part of a long and ignominious campaign by the court’s conservatives to hollow out American democracy in any way they can, so long as doing so helps the Republican Party. For this court, no voting rights provision is too sacrosanct to strike down and no voter suppression law is too discriminatory to uphold. If next week Republican-controlled states brought back poll taxes and literacy tests, the court would probably find a reason to validate them.

In the past few years, this court has again and again taken a hammer to the rules meant to ensure free elections in which all Americans can participate on an equal footing. Let’s remind ourselves:

  • In 2010, the justices said corporations have the right to use their billions to influence elections.
  • In 2011, they struck down a public financing law meant to allow candidates relying on small donations to compete with self-financed millionaires and billionaires.
  • In 2013, they struck down the heart of the Voting Rights Act, claiming it was no longer necessary because racism is pretty much over.
  • In 2018, they upheld ruthless voter purges that disenfranchise thousands of voters.
  • In 2019, they ruled that partisan gerrymandering, no matter how clearly it disenfranchises people, is beyond the ability of the courts to do anything about.

The partisan commitment of this court is so clear that in oral arguments, the lawyer for the Arizona GOP comfortably declared that the party has standing to support the law throwing out ballots cast at the wrong precinct because counting such votes “puts us at a competitive disadvantage relative to Democrats.” He knew who he was talking to.

The big picture here is that the court’s conservatives operate according to the “heads we win, tails you lose” approach to voting rights, in which with only the occasional exception, the best predictor of how a voting rights case will turn out is which side the Republican Party is taking.

Pretty much the entire GOP is now committed to the idea that if elections were fair, they’d lose — so elections must not be allowed to be fair. That’s why they’ve been on a tear at the state level, passing dozens of laws making voting more cumbersome, inconvenient and difficult, all aimed directly at populations they believe are more likely to vote for Democrats.

Wherever those laws pass, they’re being challenged in court. But what’s going to happen when those challenges make their way to the Supreme Court, with its 6-to-3 conservative supermajority? The answer is all too clear.

Thinking More Realistically About Voting

Charles Blow of The New York Times makes an excellent point about voting. It’s a war:

It has long been clear to me that we are teaching the concept of voting wrong, that we are buying into an idea of false hope and optimism that is easily exploited by those who want fewer people to vote and fewer votes to be counted.

The propaganda around voting is that of “one man (or woman), one vote,” “every vote counts,” and “free and fair elections.” That is simply not the case. I understand and appreciate the ideals, but reality is simply not aligned with this.

From the time I was a child and joined teams and clubs, we seemed to be voting on things. From the time we began to elect class officers, politics were part of our education. . . .

But that was direct democracy. Most of the time it was a show of hands in a room. Everyone present could count the votes. It was the ultimate in transparency and accountability and it laid the groundwork for how I would think about voting.

But as I got older and the elections got bigger, ballots began to be necessary. Also, the election of other people who would then vote for things in my stead. Direct democracy gave way to representative democracy and my perspective broadened.

Still, I went to a tiny school (there were 33 people in my graduating class) in the rural South. I could have learned more, been taught more about the long legacy of vote tampering and manipulation, voter intimidation and suppression, but that didn’t happen.

Neither did I learn enough about it in college. . . . I emerged into full adulthood as a political naïf.

Then began my education, my quest to unlearn what little I had been taught and to learn for the first time all the things I hadn’t been taught.

First, I guess, were the widespread and never-ending attempts, with some devastating successes, to disenfranchise people, often Black people. And there was nothing like the sting of reading the words of some of the men who were engaged in this suppression. Nowadays, those who suppress votes disguise their motives, but years ago the motives were well articulated and abundantly clear: to establish white supremacy and disenfranchise the Negro.

Now, only the articulation is absent; the results are the same.

And even beyond voter suppression, there are errors and incompetence.

One thing I will never forget about the . . .  2000 election was something that should have been obvious, but hadn’t been for me: that voting machine errors are well known and some degree of error, if small enough, was considered acceptable.

The idea of an acceptable error rate for voting has stuck with me ever since.

For instance, an NPR analysis last summer found that 550,000 primary absentee ballots were rejected, up from about 319,000 in 2016.

Then there is incompetence, like what we are seeing now in the mayoral primary election in New York City. The result of the tally may well be fine, but the haphazard handling of the vote counting undermines faith in the system.

And that’s the problem with all of this: maintaining that faith. It seems to me that setting expectations too high actually works against that faith, helps to undermine it, because those expectations will collapse under the weight of reality.

It also seems to me that it is much better to think of voting as a nest of ants, a swarm of bees, a brigade of soldiers attacking an enemy: Not everyone will survive, but the point is to achieve victory by overwhelming the enemy. Everyone one that falls in the attempt assists the others in prevailing.

Not everyone who should be able to cast a ballot will be able to. And, not every ballot cast will be properly counted. That is the sad reality of the American electoral system, and conservatives in this country have done their best to maintain or exacerbate it at all costs.

You can bristle at it. You should. I do. And liberal groups can fight back through organizing, legislation and the courts. But at the same time, you also have to realize that even if you win that battle, it won’t stay won. You have to have a new vision of voting, one that factors in the oppression and imposes itself in spite of it.

Voters must be taught that swarming the polls, overwhelming them, may well be the only real shot at winning: a single movement, an irresistible deluge of votes.

Looking Toward January 6, 2025

Republicans are predictably screaming about their cult leader being kept off Facebook for the time being. They’re citing the First Amendment, of course, but that’s got nothing to do with social media platforms (until the government starts operating its own platform or regulating their content).

Or as our congressman, Tom Malinowski, tweeted:

The 1st Amendment gives us the right to say crazy things without gov’t interference. It doesn’t require Random House to give us a book contract, or FOX to give us a prime time show, or Facebook to amplify our rantings to billions of people. Freedom of speech is not freedom of reach.

A much more significant issue is the speed with which the Republican Party is deteriorating. From Greg Sargent of The Washington Post

Rep. Liz Cheney’s fate appears sealed: Republicans are set to oust the Wyoming Republican as the No. 3 in the House GOP leadership . . . This is being widely depicted as a battle over the past . . . Most accounts portray it as a sign that in today’s GOP, fealty to the former president is a bedrock requirement, denouncing his lies about 2020 has become unacceptable, and telling the truth about the Jan. 6 insurrection is disqualifying.

All that is true, but the forward-looking dimension to this story is getting lost. What also seems unavoidably at stake is that the GOP appears to be plunging headlong into a level of full-blown hostility to democracy that has deeply unsettling future ramifications.

. . . Republicans may be unshackling themselves from any obligation to acquiesce to future presidential election outcomes they don’t like — that is, liberating themselves to overturn those outcomes by any means necessary.

. . . A Cheney spokesperson denounced her GOP enemies for wanting to “perpetuate lies about the 2020 election and attempt to whitewash what happened on Jan. 6.” This comes after Cheney told GOP colleagues that those lies are “poison in the bloodstream of our democracy” and that insurrection “is a line that cannot be crossed.”

Cheney has also urged Republicans not to turn “their back on the rule of law.” And she insists that the commission examining Jan. 6 should focus on the insurrection, not on leftist extremism that Republicans are hyping to muddy the waters around their ongoing radicalization.

So why is all this disqualifying? [It’s because] she’s demanding something important from fellow Republicans: a full and unequivocal renunciation of the lie that the election’s outcome was dubious. . . .

Now consider what else we’re seeing. Some Republicans are increasingly asserting a willingness to overturn future elections: Rep. Jody Hice’s primary challenge to the Georgia secretary of state is driven by the promise to use his power to invalidate future outcomes.

Other Republicans are asserting the freedom to keep alive the fiction that the election was stolen forever. In Arizona, a GOP-sponsored recount is underway [in hopes of] bolstering that false conclusion.

This combination is toxic: Republicans are untethering themselves from any obligation to recognize future legitimate election outcomes, which will provide the rationale to overturn them, a freedom they are also effectively in process of appropriating. Cheney is insisting on a GOP future premised on a full repudiation of these tendencies, and getting punished for it.

Guess what: These same House Republicans might control the lower chamber when Congress is counting electors after the 2024 presidential election.

“We should start to very much worry about what Jan. 6, 2025, looks like,” Edward Foley, a renowned election law scholar and a Post contributing columnist, told me.

Imagine a 2024 election decided in one state, where a GOP-controlled legislature sends electors for the GOP candidate in defiance of a close popular vote. The same House Republicans who punished Cheney — many of whom already voted against President Biden’s electors, but now control the House and have continued radicalizing — could vote to certify that slate. . . .

This places burdens on Democrats. Democratic strategist Simon Rosenberg told me that this obliges Democrats to level with voters about the threat Republicans pose to democratic stability.

“If Cheney is ousted, Democrats will have to make the radicalization of the GOP a major part of the 2022 conversation,” Rosenberg said.

And as elections scholar Rick Hasen told me, Democrats should try to get patriotic Republicans to support revisions to the Electoral Count Act, to make it “harder for a legislature to send a separate slate when there was no problem with how the election was run.”

Cheney’s ouster should prompt this, along with a much greater public and media focus on the brute reality of the GOP’s fundamental turn away from democracy.

“The core component of the democratic process is that we count the votes as cast,” Foley told me. The punishing of Cheney, Foley concluded, suggests that the Republican Party might [might???] be institutionally “abandoning the very essence of democracy”.

It Would Be So Un-American If It Wasn’t So Historically Popular

The article’s subtitle is “Republican lies about voter fraud are giving way to naked grasping for power”. From Joyce Vance for MSNBC (links in the original):

We’re living in a time where one political party openly believes it’s more important to win elections than it is to let Americans choose their own representatives in free and fair elections. And whether they’re going to get away with it is shaping up to be one of the most important issues the country faces.

The Supreme Court isn’t a venue where you typically expect to hear the quiet part said out loud. But that was what happened Tuesday, when an attorney for the Arizona Republican Party, Michael Carvin, advised the court that provisions that made it easier for eligible Americans to vote put “us at a competitive disadvantage relative to Democrats.” He was implicitly characterizing laws that make voting more difficult for likely Democratic voters, often people of color, as the difference between winning and losing elections.

Carvin was, of course, not the first person to say out loud what has become increasingly obvious to anyone paying attention: Republicans’ support for laws that make it more difficult to vote has little to do with their boogeyman — voter fraud — and everything to do with winning elections despite the will of the voters.

The former president did the same when he told “Fox & Friends” last March that Covid-19 mitigation proposals that included provisions that made it easier for more people to vote safely would mean “you’d never have a Republican elected in this country again.”

Historically, restrictive voting measures have been justified as necessary to keep a shadowy group of people who are allegedly intent on casting fraudulent ballots from stealing elections. But those people never seem to materialize, and we’ve watched that narrative implode over the past few months as claims of fraud in the election were definitively rejected in over 60 lawsuits.

Similarly, after the 2016 election, [the winner of the Electoral College] established a so-called Election Integrity Commission to prove the existence of “widespread voter fraud.” It was forced to shut down just months into its work when it was unable to find evidence to substantiate that claim. Still, the fraud lie is routinely used to burden minority voting rights.

This happens despite the conclusion by the Brennan Center for Justice, based on the data, in December that “voter fraud is extraordinarily rare and our system has strong checks in place to protect the integrity of our voting process. These are the facts.”

It was in this landscape that the Supreme Court heard oral arguments Tuesday in Brnovich v. Democratic National Committee, in which Democrats sued Arizona under Section 2 of the Voting Rights Act. The plaintiffs argued that a policy that kept otherwise lawful ballots that had been cast in the wrong precincts from being counted, as well as a law that broadly restricted people from having other people turn in early ballots for them, amounted to unlawful voter suppression. The court seemed inclined to approve both of the Arizona provisions; the Court of Appeals had ruled that they unfairly burdened Black, Latino and Native American voters.

When the Supreme Court issues its ruling, what’s really at stake is whether its holding will affect more than just the Arizona provisions. Brnovich gives an increasingly conservative court the opportunity to adopt a standard of proof in Section 2 cases that would make it easier for Republican legislatures to enact policies that make it more difficult for people of color to vote, simply by claiming they are guarding against voter fraud. Brnovich might result in a strict test that would apply to future cases — like those that may need to be brought if some of the more than 250 bills Republicans have offered to restrict voting pass in their legislatures.

It’s clear that Republican operatives and legislatures have adopted voter suppression through restrictive legislation as a political strategy. Now that a lawyer has confirmed before the Supreme Court that it’s really just about winning elections, what’s a constitutional republic to do?

It’s probably too much to hope that the court will have a moment of righteous indignation. This is an even more conservative court than the one that gutted the Voting Rights Act in Shelby County v. Holder in 2013, when Justice Ruth Bader Ginsburg accused the majority of taking away the umbrella that protected us in the middle of the rainstorm because we were still dry while using it.

It seems like it would be easier to go out and compete for votes with attractive policies and ideas than to engage in complicated legislative shenanigans and expensive litigation, but some Republicans seem to be as afraid of voters as a kid headed home to his parents with a bad report card.

So the only real solution to protect the right to vote is for the Senate to pass the For the People Act, which the House cleared Wednesday night, and for both chambers to pass the John Lewis Voting Rights Act. Those laws would restore the protections of the Voting Rights Act and remove barriers that make it difficult for eligible people to register and vote. If passed, they would restore the mechanism to challenge unduly restrictive state practices.

Unless the Supreme Court does something unexpected, this is the only path forward.
Otherwise, next year and beyond, a party that controls its state’s legislature can impose rules that make it confusing and difficult for some people to vote. It can create an array of last-minute changes and restrictions that defeat your right to vote, for instance by changing your polling place and rejecting your ballot if, unaware, you go to the previous one.

While your choice of whom to vote for may be political, the right to vote itself isn’t. Instead, it’s a fundamental right that defines who we are as Americans. In part, the story of America has been about expanding groups of people who can exercise the franchise. We celebrated the 100th anniversary of women’s gaining the right to vote last year. Important parts of our history are about people who persisted in demanding the right to vote and the dignity that comes with it for Black people, including the Selma march and the use of dogs and fire hoses against protesting schoolchildren in Birmingham. If we become a country where the right to vote can be restricted through political machinations, then who are we?

People who are afraid of the results of elections in which everyone who is eligible to vote can vote are people who don’t believe they have a good case to make to the voters — people who think they’re going to lose because they haven’t governed well. In the words of the lawyer in the Brnovich case, “Politics is a zero-sum game, and every extra vote they get … hurts us.” But voting is about our rights, not about gamesmanship. Elections should be decided by the people, not by slick efforts to make it harder for some people to register or vote.

The Sharp Divide in American Politics

I used to view American politics as mainly a struggle between capital (big business and the rich) and labor (the rest of us). That conflict still exists, but I think it’s more helpful today to see our politics as a fight about democracy.

Their side wants fewer people to vote. Our side want more people to vote. 

From Greg Sargent of The Washington Post:

Amid the stream of delusion, depravity, malevolence and megalomania that characterized D____ T____’s speech to the Conservative Political Action Conference on Sunday, one message should be regarded as arguably more important than all the others combined.

It’s this: The former president told his audience that the Republican Party’s success in coming years depends, in no small part, on its commitment to being an anti-democracy party.

T____ didn’t say this in precisely those words, of course. But that message blared through all the background noise like a loud, clanging alarm bell.

This will require Democrats to redouble their focus on passing their big package of pro-democracy reforms as soon as possible — and to be prepared to nix the legislative filibuster to get it into law. It may be tempting to dismiss or ignore T____’s deranged rantings, but Democrats should see this one message as an actionable one.

As expected, T____’s CPAC speech doubled down on the big lie that the election was stolen from him — and then some. . . .

But embedded in that big lie was an unintentional truth. It was revealed when T____ uncorked an extended riff suggesting that [his party’s] future prospects depend on what he called “election reforms.”

“Another one of the most urgent issues facing the Republican Party is that of ensuring fair, honest, and secure elections,” T____ declared. “We must pass comprehensive election reforms, and we must do it now.”

By “election reforms,” T____ actually meant a redoubled commitment to making it harder to vote. We know this, because he said so: He went on to declare that Democrats had used the “China virus” as an “excuse” to make vote-by-mail easier.

“We can never let that happen again,” T____ said. “We need election integrity and election reform immediately. Republicans should be the party of honest elections.”

This is absurd (Republican legislatures also facilitated vote-by-mail) and full of lies (the election’s legitimacy was upheld in dozens of courts). But that doesn’t change its underlying meaning, which is unambiguous: T____ lost because voting wasn’t hard enough; Republicans must push as forcefully as possible in the opposite direction; this is “urgent.”

The rub of the matter is that all across the country, Republicans are acting on exactly this reading of the situation. [These actions] include sharp cuts to early voting; restricting vote-by-mail in numerous ways; and in the most extreme cases, proposals to allow state legislatures to appoint presidential electors in defiance of the state’s popular vote.

Meanwhile, in numerous states, Republicans are gearing up to use this year’s decennial redrawing of electoral maps to entrench extreme gerrymanders. They have openly declared that this will help them win back the House in 2022 . . . .

Crucially, these efforts are increasingly animated by the same lie about the election’s illegitimacy that T____ told at CPAC. [It’s] their excuse to continue entrenching anti-democratic and anti-majoritarian advantages wherever possible.

This simply requires Democrats to pass the For the People Act in the Senate and House. It includes numerous provisions that would make voting and registration easier; curb restrictions on voting and vote-by-mail; mandate nonpartisan redistricting commissions; and restore voting rights protections gutted by the Supreme Court.

Democrats [must also] be prepared to end the legislative filibuster when Republicans block the package in the Senate. Yes, Democrats face major obstacles to this in the form of Democratic Sens. Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.).

But a case must be made to those holdouts that Democrats cannot allow Republicans to grind their agenda to a screeching halt — in the face of multiple short and long term crises facing the country — through the exercise of minority rule, facilitated by what has become yet another cynically-wielded tool of counter-majoritarian obstructionism.

“The Big Lie about 2020 is built on an ugly truth: T____ and the Republican Party have turned their backs on our constitutional vision of government of, by, and for the people,” Sen. Jeff Merkley (D-Ore.) told me in an emailed statement.

“You heard it from T____ himself,” Merkley continued. “We’ve got to get the For the People Act signed into law ASAP so the next elections are decided by the will of the voters, not rigged by corrupt politicians.”

Democrats keep telling us that the prospects for civic renewal in the wake of T____ism’s continued degradations — and the [right’s] ongoing slide into authoritarianism — depend on making government and democracy more functional and responsive. If they really believe this, that imposes obligations on them to do just that. . . .

Taking this idea seriously requires acting where possible to prevent the [Republicans’] increasing radicalization from further wrecking our democratic system. We know exactly what this will look like. T____ just told us so himself.

Unquote.

It might not be possible to get all fifty Democratic senators to agree to abolish the filibuster. But there are other options. This is part of a January article from The Hill called “Senate Democrats Leery of Nixing Filibuster”:

Sen. Ron Wyden (D-Ore.) said that he supported going back to the talking filibuster — a “Mr. Smith Goes to Washington”-style change that would let senators block a bill or nominee for as long as they could stay on the floor discussing it . . .

One idea floated by Democrats is trying to get an agreement to enact smaller rules changes that would leave the 60-vote legislative filibuster intact when it comes to ending debate on legislation, but make it easier to move bills on the Senate floor.

Sen. Chris Murphy (D-Conn.), who is supportive of filibuster reforms, [said] that outright nixing the 60-vote legislative filibuster was not going to happen in a 50-50 Senate, given opposition from some of his Democratic colleagues: “Let’s figure out ways [to reform Senate rules so] that the minority doesn’t control the place every single day”.