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How Democrats Can Reverse Years of Voter Suppression

It doesn’t require packing the Supreme Court.

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Democratic odds will improve if it’s easier for eligible voters to vote. Above, Democratic gubernatorial candidate Andrew Gillum speaks at a rally on Sept. 24 in Miami, Joe Raedle/Getty Images

Faced with the latest flurry of hardball Republican tactics on voting issues this election cycle, Democrats are grappling with the reality of an opposition that now seems determined to cement long-term minorityrule. In order to combat this dynamic, progressives need a plan of their own for the next time they control both houses of Congress and the presidency. The single best step that Democrats could take under a future unified control would be to use the “nuclear option” to expand voting rights. This would let Democrats, by a simple majority vote, enact wide-ranging voting reform, from restoring a key part of the Voting Rights Act, to automatic voter registration, to statehood for D.C.

This progressive version of electoral hardball—which would merely mean killing the filibuster for voting rights legislation—is an appropriate response to the hardball tactics Republicans have used to manipulate the U.S. political system in recent years. Consider the most prominent example of recent Republican hardball: the Republican Senate in 2016 denying Obama-nominated Judge Merrick Garland a hearing for a Supreme Court spot after the death of Justice Antonin Scalia. In 2017, meanwhile, the Republican Senate invoked the so-called nuclear option, which lowered from 60 votes to a simple majority the number of senators necessary to confirm a Supreme Court nominee, leading to the confirmations of Justices Neil Gorsuch and, more recently, Brett Kavanaugh.

GOP hardball has by no means been restricted to the federal level. From Georgia to Kansas to North Carolina to North Dakota, Republican-dominated legislatures have used a variety of means to make it harder for likely Democratic voters to register and vote.

The Supreme Court has abetted all of these efforts, killing off a key provision of the Voting Rights Act, freeing the wealthy to spend unlimited sums of money to influence elections, and failing to rein in extreme partisan gerrymandering in states like North Carolina and Wisconsin.

There is thus a growing fear that all these moves, combined with the bias of the Senate toward small states, will lead to a period of sustained minority rule in the United States. In response, some have proposed radical changes, such as a plan to pack the Supreme Court with liberal justices if and when Democrats take control. Others fear that such tactics by Democrats could cause things to spiral out of control, further eroding democratic norms after a period in which President Donald Trump has attacked courts, the free press, and the integrity of the election system itself.

In his engaging new book, An Uncivil War, Washington Post columnist Greg Sargent grapples with the challenges to democratic norms and majority rule unleashed by Trump and the Republican Party. Sargent mines the political science and legal literature on norm devolution and constitutional hardball to urge Democrats to think carefully about the kind of change they might undertake should they retake the levers of power in 2021 or beyond. Drawing on the work of professors Joseph Fishkin and David Pozen, Sargent cogently argues that “Democrats will have to do whatever they can to, in effect, take the weaponry out of GOP hands (in effect, out of both parties’ hands) whenever possible.”

Using the nuclear option to promote democracy makes sense.

Sargent is on the right track, and the key is finding the right balance between restoring political equality and fomenting an all-out political war. Rather than begin with a radical step like court packing, Democrats could, by simple majority, vote to adopt a procedure whereby all future voting rights measures need only a simple majority to pass. Not only would killing of the filibuster here be the exact same move that Republicans did to allow for the majority votes on Kavanaugh and Gorsuch, Democrats could correctly claim that such a move will further the values of equality embedded in the 14th and 15th amendments of the Constitution.

Once Democrats go nuclear on voting rights, here are some pieces of legislation that could pass by majority vote:

• Legislation restoring the preclearance provisions of the Voting Rights Act, which the Supreme Court killed in 2013’s Shelby County v. Holder, using a new coverage formula to satisfy the court’s standard in that case.

• Legislation passed under Congress’s Article I powers to require states to establish independent redistricting commissions, using neutral standards, for the drawing of congressional district lines.

• Legislation admitting Puerto Rico and D.C. as states in the union, creating four more Senate seats.

• Legislation giving greater voting rights to American citizens living in U.S. territories.

• Legislation establishing automatic voter registration for congressional elections, complete with a national registration system that would both ensure that eligible people are registered to vote and that ineligible people are kept off the rolls.

• Legislation establishing generous public financing for elections (perhaps through the use of campaign finance vouchers), barring foreign interference in U.S.
elections, requiring greater transparency in political giving, and limiting contributions to independent groups like super PACs.

To be sure, some of these measures might be challenged in court, and the conservative Supreme Court would have to decide how much political capital to spend if it wanted to strike them down along partisan lines (all with the threat of court packing in the background).

And some might worry that eliminating the filibuster for voting rights could come back to haunt Democrats, because Republicans could then pass laws by simple majority vote contracting voting rights should they take over the political branches again. They could no doubt try to package a strict voter ID law as preserving the voting rights of Americans by citing fraudulent claims of a “wave” of noncitizen voting.

The simple answer to this worry is that Republicans already could—and would—do this if they determined that it was in their political interests. We have seen that whatever norms have existed will not stand in the way of the preservation of their power. In any event, if Democrats are successful in using legislation to expand voting rights, Republicans are going to have a harder time running on a platform of shrinking that growing electorate.

The other risk of course is that Republicans respond by killing the filibuster for everything. This concern is legitimate, because killing the filibuster might let a majority of senators representing a minority of Americans enact more anti-democratic legislation. I expect, though, that Republicans would do that if they wanted, regardless of whether Democrats went nuclear on voting rights first. After all, both Democrats and Republicans went nuclear on judges, and it hasn’t yet caused the whole system to collapse.

Using the nuclear option to promote democracy makes sense. It’s not as far as some Democrats likely would want to go, but it would go a long way toward undoing some of the damage to our democracy over the past few decades, and particularly the past few years.

Going nuclear on voting rights won’t happen next week, even if Democrats take back the House and (less likely) the Senate. It requires a cooperative president. But it’s a heck of a platform for the 2020 election season, which starts next week. 

Richard L. Hasen is a professor of law and political science at the University of California–Irvine School of Law and is the author of Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections and The Justice of Contradictions: Antonin Scalia and the Politics of Disruption.