Not all Democrats have the same priorities. Joe Biden puts his $3.5 trillion spending package at the top of the list. He has staked his presidency and his legacy on lofty reforms in the fields of climate change, education, social welfare and foreign policy.
Speaker Nancy Pelosi would seem to have other priorities. Remarkably, she has put voting rights at the top of the list. Democrats believe that the more people vote, particularly people of colour, the more Democrats will be elected to office and the better off the country will be. Republicans appear to have decided that the smaller the vote, the better off we are—particularly in Democratic districts where they might have a chance to elect some more Republicans. In the race to the mid-terms in 2022, a Republican victory in Congress will sound the death knell for the Democrats’ transformative goals.
There should be bi-partisan agreement that voting rights are the cornerstone of democracy. Yet the differences between Democrats and Republicans are opportunistic rather than principled. Both parties want to put their thumbs on the scale.
Harris County, Texas, the nation’s third-largest county, is an instructive example. With a population 44 per cent Latino and 20 per cent black, it has become a Democratic stronghold. George W Bush carried it by 10 points in 2004 and went on to carry Texas. Biden lost Texas in 2020 by six points, but carried Harris by 13.
In response to the Covid crisis, Harris County took a number of steps to make it easier to vote, notably providing drop boxes for mail ballots and distributing mail-voting applications to households, even when they didn’t request them. Greg Abbott, the pro-Trump, pro-life, anti-vax Republican governor, was quick to intervene. He ordered that there be only one drop off place in all of Harris County, and the Republican-dominated Texas courts upheld the order (though Trump lost the county anyway).
The apparent targeting of Harris County is significant. As Chris Hollins, one of its former election clerks, put it: “The math is simple. The take is, ‘Let’s make it harder for Harris County to vote.’ Even though thousands of Republicans are going to be disenfranchised too.”
After the 2020 election, the Texas legislature acted to restrict the more liberal voting scheme. It passed a measure outlawing 24-hour polling places, drive-through voting and unsolicited absentee ballot applications.
It joins other GOP-run states such as Georgia, Florida and Arizona in limiting ballot access. In the first, a new voting law prescribes the number of ballot drop boxes per county, using a formula based on the number of registered voters in each. Election officials say the change will cut the number available. The intention is surely to make voting more difficult for black and Latino people, all the while sidestepping the constitutional and legal mandates prohibiting race discrimination in voting. Drop box voting has been a convenient facility, used in many states for many years with no suggestion of fraud. Its use should be enlarged, not restricted.
What we are witnessing is the latest fight in a centuries-long war. Black people and other marginalised minorities have had difficulty voting since the dawn of the Republic. At the time the Constitution was drafted, black people could not vote at all, and the founding document provided that they would be counted as only three-fifths of a person when determining a state’s share of the congressmen on Capitol Hill. The Supreme Court held in the infamous Dred Scott decision of 1857 that black people were not even citizens. Only with the ratification of the 14th Amendment in 1868 did they become full citizens. The 15th Amendment was ratified in 1870, in the wake of the Civil War. It provided that the right to vote of citizens could not be denied or abridged by any state on account of race, colour or previous condition of servitude, and empowered Congress to enforce the provision with “appropriate legislation.”
The 15th Amendment did not solve the problem of discrimination in voting—in the South anyway. Odious poll taxes, literacy and knowledge tests, good moral character requirements and other barriers persisted. Only with the enactment of Section 2 of the Voting Rights Act in 1965 did Congress pass “appropriate legislation” that had some teeth. Section 2 forbade in all 50 states any “standard, practice or procedure” resulting “in a denial or abridgement of the right of any citizen… to vote on account of race or color.”
The problem is that this legislation has failed to pass muster with the Supreme Court. In June 2013, the Court, in a 5-4 decision, essentially gutted Sections 4 and 5 of the Voting Rights Act, which required certain “bad actor” states to get “pre-clearance” from federal governmental authorities before enacting changes in voting procedures. The majority reasoned that times had changed, and that patterns of black voting in the “bad actor states” had improved since 1965. But Ruth Bader Ginsburg, presciently writing for the dissenters, saw the prospect of retrogression as real: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Now, it appears that even Section 2 of the Voting Rights Act may be on the chopping block. Last term, with Justice Ginsburg no longer on the bench, the Court rejected by 6 to 3 Democrat challenges to aspects of an Arizona voting law which provides, among other things, that votes cast in the wrong precinct would not be counted, and that it would be a criminal offence for anyone other than a caregiver, family member or government official to collect an early postal ballot.
Justice Alito’s opinion for the majority argued that the state had “an entirely legitimate interest” in the prevention of fraud. Dissenting was Justice Elena Kagan, who thought that the majority had “rewritten—in order to weaken—a statute that stands as a monument to America’s greatness, and protects against its basest impulses.”
So if there are to be voting rights protections, they must come from Congress. Voting along party lines, the House of Representatives enacted the John Lewis Voting Rights Advancement Bill and the For the People Act in August, with sweeping guarantees of voter protection, but it is uncertain whether either of these measures will pass the Senate.
Senior Senate Democrats did reach agreement last week with Joe Manchin, the moderate Democrat of West Virginia, on a watered-down version of the two House bills, while Majority Leader Chuck Schumer promptly vowed to bring the new measure to the floor. The legislation would, among other things, create an automatic voter registration-system based on drivers’ licences, provide for at least 15 days of early voting, and institute other reforms in all federal elections. Schumer claims that “this legislation is critical for stopping some of the most egregious assaults against voting rights happening at the state level.”
But Minority Leader Mitch McConnell was sceptical. Rubbishing the bill, he told reporters that Republicans “will not be letting Washington Democrats abuse their razor-thin majorities in both chambers to overrule state and local governments and appoint themselves a national Board of Elections on steroids.”
If McConnell invokes the filibuster, and the Democrats fail to muster 60 Senate votes to override, it is unlikely that voting reform will be enacted into law anytime soon. We will see how the fight for what Biden called our “precious” and “fragile” democracy plays out in the coming weeks.
