Democracy’s Moment of Reckoning
Early in the morning of April 1, Texas state Senator Bryan Hughes, a Republican who represents a rural district in the northeast part of the state, posted a video to Twitter from the Capitol in Austin. His hair was unkempt. There were dark circles under his eyes. But he spoke with a confidence attributable as much to the fact that few were watching as to the significance of the announcement he was about to make. “It’s a little after 2:30 in the morning and the Texas Senate has just recessed,” he said. “The Senate passed Senate Bill 7, which is an omnibus election integrity bill. This bill is about making it easy to vote and hard to cheat.”“At the end of the day,” he continued, “the Texas Senate passed a strong election integrity bill that we can be proud of.” Hughes didn’t explain why a bill Texas ought to have been proud of had been passed in the middle of the night. And he didn’t offer a summary of the bill’s contents either. The outlets that did described provisions familiar by now to Democratic voters in Republican states. Senate Bill 7 was yet another measure making it harder to vote and easy for state Republicans to cheat those who do out of having their votes counted. In the bill as originally written, populous counties with a million residents or more—which are largely Democratic—would have been required to establish polling locations based on the registered voter population in state House districts, a move that would have cut the number of locations available to the potentially Democratic but not yet registered populations in urban areas.The Texas House of Representatives has since passed a different version of the bill, and the Senate is altering it yet again in backroom negotiations. It’s unclear which provisions will remain in the final version, but the Senate’s original bill also proposed giving freedom of movement to poll watchers everywhere within a polling place but voting stations, where they would nevertheless be allowed to video record any efforts to assist voters with their ballots that they deem suspicious—provisions that amount to a license to intimidate voters. Drive-through voting would have been banned, and efforts to expand early voting hours would have been restricted—moves aimed, in part, at repealing rules that helped bring working-class Black and Hispanic voters to the polls in large, Democratic counties like Harris and Bexar in 2020. And in the current bill, election officials would be prohibited from sending out unsolicited mail ballot applications. These and the bill’s other proposed changes have been justified, of course, as steps the state needs to combat voter fraud. As ought to be well known by now, claims of mass voter fraud are specious always and everywhere. According to The Texas Tribune, the state attorney general’s office closed cases on 150 defendants for election offenses like fraud between 2004 and November 2020—not even a speck’s worth of the nearly 90 million ballots cast in Texas over that time.But that hasn’t stopped Texas Republicans from crafting a dizzying and desperate set of proposed changes to the state’s voting laws in 49 bills this session. Requiring voter registrations to be filled out by hand on paper, limiting get-out-the vote efforts by volunteers, penalizing officials for insufficiently thorough voter roll purges, making those claiming disability in mail vote applications gather proof, in possible violation of the Americans With Disabilities Act—all are in keeping with a directive from Governor Greg Abbott, in the throes of a pandemic that had killed nearly 50,000 Texans by April of this year and ravaged the state’s economy, for the state legislature to prioritize voting restrictions in 2021. And, as is well known, Republican state legislators are heeding similar calls nationwide—from Georgia to Arizona, from Wisconsin to Florida, posing the greatest threat to democratic rights the country has seen since the Jim Crow era.They can be stopped. The For the People Act, a landmark package of democratic reforms, has passed the Democratic-controlled House and awaits passage in the Democratic Senate and Democratic President Joe Biden’s signature. “The For the People Act is the most significant democracy reform in over half a century,” said Michael Waldman, president of the Brennan Center for Justice. “To include really significant voting protections, the most significant redistricting legislation since basically the 1840s, really significant campaign finance legislation—if it were to pass, it would be a pretty significant improvement in our democracy and a pretty extraordinary achievement.”The For the People Act faces its own anti-democratic hurdle to passage—not one concocted by the Republican Party, but the legislative filibuster, a long-standing feature of the Senate that the Democratic caucus has the power to eliminate or change. Failing to do so would be more than a mere strategic blunder. The Republican Party is waging an assault on multiracial democracy, which even now, two decades into this new century, remains more aspiration than reality. The inequities of the American political system are already deep. If Democrats fail to act, the Republican Party will deepen them beyond hope of repair, securing minority rule for itself and bringing the project of American democracy to an end. According to the Brennan Center, 361 bills restricting voting rights had been introduced in 47 states by late March of this year. Five had been passed into law by the time of this writing, including Georgia’s extraordinary SB 202, a comprehensive rewrite of the state’s election laws that, among other changes, solidifies Republican control of the State Election Board, which has been given the power to replace county boards of elections with state administrators who can disqualify voters and ballots. The brazenness of this and other changes to the state’s election laws triggered a broad and immediate response from Democrats, activists, companies, and a wide array of advocacy groups. “In 11 years, I never witnessed a massive bill approved at such speed and signed in such desperation,” former gubernatorial candidate Stacey Abrams wrote after its passage. “It’s Jim Crow in a suit + tie: cutting off access, adding restrictions, encouraging more ‘show me your papers’ actions to challenge a citizen’s right to vote. Facially neutral but racially targeted.”Republicans are working to clamp down on voting rights all over the country—restrictive bills have been put forward even in places like Idaho and the Dakotas, where Democrats aren’t particularly competitive statewide or at the federal level. But the right is pushing the hardest in places where Democrats have been hoping to make significant gains, including Texas—a state where voting rights are already remarkably constrained, and which has been in violation of the Voting Rights Act every decade since its passage in 1965. According to Northern Illinois University professor Scot Schraufnagel’s Cost of Voting Index, Texas is already the hardest state in the nation to vote in thanks to its in-person voter registration deadline 30 days prior to Election Day, a difficult preregistration process, and other regulations. The coronavirus pandemic prompted the expansion of vote by mail and other emergency measures for 2020’s election. But state Republicans are intent on reestablishing or worsening the pre-pandemic status quo.“Thankfully a lot of these counties did step up and make things easier, but it’s not just like suddenly you add some extra days or hours of voting and the generational systemic repression goes away,” said Joaquin Gonzalez, staff attorney at the Texas Civil Rights Project. “All these laws that make it harder to register, to vote, to participate in the process, just discourage a habit of voting. And, of course, individuals can’t vote if they’re not registered in the first place in Texas. You have one of the strictest restrictions around registering voters. So definitely you still see dramatic implications in terms of turnout, particularly turnout for Latinx voters.”Ed Espinoza, executive director of the progressive communications firm Progress Texas, agreed. “It’s always tough to mobilize people in Texas because of the laws that are here,” he said. The state is one of only nine that don’t have online voter registration. “That’s the first barrier—that you’ve actually got to either find a card somewhere or you have to print it out. You have to get a stamp, you have to get a pen. A lot of just like the type of things people did when they used to churn their own butter and replace their typewriter ribbon, you know what I mean?”If the Democrats fail to act, the Republican Party will deepen these inequities beyond hope of repair, securing minority rule for itself and bringing the project of American democracy to an end.Until 2013, Texas had been one of the states required to preclear voting regulations and congressional redistricting plans with the federal government under Section 5 of the Voting Rights Act, in order to protect minority constituents. But the Supreme Court’s decision in Shelby County v. Holder led to a pitched legal battle over the state’s ID requirements and the passage of SB 5, a new voter ID bill, in 2017. SB 5 requires that those using a nonofficial form of ID to vote sign an affidavit swearing that they have no official ID available—a provision, voting rights advocates have noted, that would disproportionately expose Black and Latino voters, who are less likely to have official ID, to criminal penalties simply for exercising the right to vote.“This is not a brand-new thing in Texas,” said Tommy Buser-Clancy of the ACLU of Texas. “But some mechanisms that did crop up over the past decade do contribute to it being harder to vote. Most obviously, the voter ID law. Courts, and even a very conservative court, found that it was passed with racially discriminatory intent.“The clearest explanation for the suppressive bills,” he continued, “is the desire to suppress not just votes generally, but in particular the votes of Black and Latinx individuals in Texas. When you talk about population growth, the Latinx population growth drives not a hundred percent of that, but a decent portion of that.”Specifically, Texas’s Latino population has grown by more than two million since 2010, outpacing combined growth of the state’s white, Black, and Asian population every year this past decade, according to The Texas Tribune. The state’s overall growth entitled it to two new congressional districts this redistricting cycle. But in Texas and other Republican-controlled states, the right will have full control of the redistricting process without the safeguards against racial gerrymandering that the Supreme Court struck down in Shelby. Republicans will certainly try to match or outdo their redistricting successes that followed the GOP wave in 2010, and this has progressive data analyst David Shor even more worried than he is about their efforts to restrict voting rights.“The current maps are very biased against us,” Shor said. “This cycle was a pretty good year for Democrats. We got something like 51.3 percent of the vote, and we still almost lost the House. In some ways, what really helped us was that 2016 really was a strange realignment that kind of broke some of these gerrymanders. And Republicans are going to have another bite at the apple—they’ll be able to pretty easily destroy a lot of these surprise wins that we managed to hack out in 2018.”Republican efforts will be hampered a bit in states they don’t fully control or where advocates have successfully pushed fair districting measures in recent years. “In a lot of states, there’ll be improvement over 10 years ago, in that you’ve either had redistricting reform—like in Michigan, where it was passed by ballot initiative, or Colorado or Ohio, where the Republican governor pushed through the redistricting reform measure—or you have split government,” said Waldman of the Brennan Center for Justice. “That makes it a lot harder to just have a one-party gerrymander.“But in a lot of the country, there’s a very high risk of extreme gerrymandering—extreme racial gerrymandering, and extreme partisan gerrymandering,” he added. “And that’s mostly across the South and Southwest, and that’s because you have one-party control and the Voting Rights Act has been gutted.”Texas Democrats are already wary about what the state’s Republicans intend to do. “They are going to squeeze as much out of redistricting as they possibly can,” Espinoza said. “We’re going to get three seats, and they’re going to try and draw three Republican seats. And it doesn’t matter what the growth in the state looks like. I mean, I live in Austin. Austin congressional districts look like a pinwheel. There are five districts that either come out of or come into Austin because they’ve sliced and diced it up. And they try to make the argument that, ‘Well, Austin has five representatives that can stand up for it.’ But give me a break. None of those Republicans care about Austin.”Espinoza continued, “We’re pretty much held hostage in our own state. And the only hope we have for reform is taking a stand much like the nation did when it came to the Civil Rights Act. And when it came to other issues—the 18-year-old rights of votes, any kind of movement that we can look at over the years—you had a couple of states that were very bad actors and the nation’s conscience came to our rescue. We are relying on that again, because in some ways it’s all we’ve got.”It remains unclear whether a federal rescue is on its way. The For the People Act would ban partisan gerrymandering and establish an inclusionary set of rules for all federal elections in the country—online and automatic voter registration, expanded early voting and drop boxes, nationwide mail-in voting, and provisions preempting restrictive voter ID laws are all included, along with the restoration of voting rights for ex-felons and provisions to curb the discriminatory purging of voter registration rolls. The act also includes an affirmation of the need to update Section 5 of the Voting Rights Act with new legislation like the John Lewis Voting Rights Advancement Act. But neither the For the People Act nor the John Lewis Voting Rights Advancement Act can pass the Senate without Republican support. That’s thanks to the filibuster, which imposes a 60-vote threshold for the passage of most legislation—an impossibility for the 50-seat Democratic caucus, given Republican intransigence and opposition to the Democratic agenda.Texas’s growth entitled it to two new congressional districts this redistricting cycle. But the right will have full control of the redistricting process without the safeguards against racial gerrymandering that the Supreme Court struck down in Shelby.Activists and a rapidly broadening constellation of reform advocates and elected officials have been demanding a fix—either eliminating the filibuster entirely or at least exempting critical bills like the For the People Act from it. Both can be done by a unified Democratic caucus. But both have been rejected by Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, and other Democratic moderates have yet to take a clear stance on the filibuster’s fate. Eli Zupnick of Fix Our Senate—a coalition of nearly 60 groups demanding the filibuster’s full elimination—is nevertheless hopeful that they’ll come around, especially given the implications of the For the People Act’s potential failure and the expansion of the Republican assault on the right to vote.“I think that the biggest reason that I’m feeling encouraged and very confident that something’s got to give is that more and more Senate Democrats understand the extreme urgency when it comes to voting rights and voter suppression across the country,” Zupnick said. “We saw Senator Klobuchar coming out and saying things like, we’re not going to let an antiquated Senate rule get in the way of passing the For the People Act. We saw [Nevada Senator Catherine] Cortez Masto and [Montana Senator Jon] Tester, Senator Patty Murray [of Washington state] saying this is too important and has to get done, even if it means an exemption to the filibuster.”Jonathan Gould of the University of California Berkeley School of Law and Harvard’s Kenneth Shepsle and Matthew Stephenson have been working on a fix for the filibuster that might unshackle Democrats while preserving their ability to resist minority rule if they lose power in Washington. “The essence of the proposal is to use the same tool that has given us the dysfunctional current filibuster—that is, the Senate power to determine its own rules of proceedings under Article 1, Section 5 of the Constitution—to move the Senate in a pro-democratic direction,” Stephenson said. “And that would be by replacing the current supermajority filibuster rule with what we call a popular majoritarian cloture rule, under which debate in the Senate on a measure could end only with the support of a majority of senators who collectively represent a majority of the population—or, more accurately, a larger share of the population than those senators in opposition.”The proposal would move from requiring a three-fifths majority of senators or 60 votes to file cloture, end debate on a bill, and proceed to a vote, to requiring only the votes of senators representing a majority of the country’s population to end debate, with each senator representing half of their own state’s population. This would both allow the Senate to advance the For the People Act and the rest of the Democratic agenda under Joe Biden and preserve the filibuster as an option for Democrats, should Republicans use their structural advantage in the chamber to ride back to control. But the proposal is built upon a principle that transcends the current partisan landscape—any coalition of senators representing the majority of Americans could make use of it.“One of the reasons that we focus on a kind of reform that would be consistently majoritarian is because we also care about small-d democracy,” Stephenson said. “Under current circumstances, the impacts of the filibuster are asymmetric, though maybe not quite as asymmetric as we might think only looking at things that have been on the legislative agenda for the last five years. Thinking more broadly and thinking in the long term, we think it would be better to have a check in place that ensures that the Senate can’t take a final vote on a matter if 50 senators who represent a majority of the population object.”The fact that these conversations are taking place is reflective of a broad shift in our understanding of the American political system’s stability and health. The last decade has been cluttered with moments that opened eyes to the fragility of democratic rights, few more so than the attack on the Capitol on January 6. But the most potent threats to rights remain conservative legislation and legal challenges—as symbolically resonant as the gathering of the mob was, they were latecomers to a battle that the Republican Party has been waging for many years now. “I think until recently there’s been a partisan asymmetry where Republicans have really focused on the rules of democracy,” Waldman said. “Whenever they get so much as a pinkie on a lever of power, they pass voting restrictions or in the Supreme Court, they do Citizens United. And Democrats have not given it nearly as much central attention. That’s changing.”Whether that change yields concrete action to protect democratic rights in Texas and elsewhere remains to be seen. The Democratic Party holds power in Washington. It needs only a unified caucus in the Senate to change or eliminate the filibuster and pass the For the People Act, crippling the GOP offensive against the right to vote. If Democrats fail to act, the Republican Party will continue to shape that system to its benefit and at the expense of all those who make up the American majority—not just the minorities and reliable Democrats whom Republicans have targeted for disenfranchisement, but all Americans who believe in political equality, the principle that each and every vote should count and count the same as any other. The American political system was not designed to sustain this principle. But we’ve reached a critical point in the trajectory of this country. Democrats can act now to set us further on the path to becoming a democracy accessible and responsive to all. If they don’t, the Republican Party will close off that path for good. The choice is theirs, but it won’t be for long.
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