Part of the story of the 2018 elections was about the struggle for voting rights. In state after state, Republican elected officials fought to restrict the franchise as though their very careers depended on it, as perhaps they did. And across the nation GOP operatives and candidates echoed the president’s remarkably effective revival of the hoary myth of minority voter fraud, this time linked to an immigration scare.
In at least one state with a history of voter suppression, Georgia, this challenged right to vote became the central issue of a close gubernatorial election, as a longtime crusader for minority voter registration, Democrat Stacey Abrams, faced a Republican secretary of State, Brian Kemp, who was famous for aggressive voter purges and who refused to recuse himself from decisions affecting his own candidacy. Indeed, the controversy has continued in Georgia beyond November 6 to a December 4 runoff to name Kemp’s successor as secretary of State in a contest where Trump has predictably endorsed a GOP candidate who has pledged to be as tough on aspiring voters as the state’s new governor.
With the two parties largely arrayed on opposite sides of the voting-rights saga, it’s not surprising that Democrats have sought to make this a national issue, as reflected by its high-profile inclusion in the agenda of the newly Democratic-controlled U.S. House, as one veteran member explained:
But as the Washington Post’s Paul Waldman explained, there are grounds for pessimism toward such efforts, above and beyond the fact that the Senate and the White House are currently controlled by the GOP:
[I]f it became law, all of it would immediately be challenged in the courts by Republicans as an infringement on states rights …
The five conservative justices on the court have shown themselves to be hostile to voting rights, expansive in their solicitousness toward the needs of the ultra-rich to shape campaigns to their liking, and favorably disposed to any kind of voter suppression a Republican-run state can come up with. It’s hard to imagine they wouldn’t strike down any effort at safeguarding democracy if they thought it might adversely affect the electoral prospects of the GOP.
That assessment was based in no small part on the landmark 2013 Supreme Court decision (Shelby County v. Holder) that gutted enforcement of the 1965 Voting Rights Act and gave a green light to southern states (previously under the obligation to secure a federal “preclearance” for changes in election procedures that might affect minority rights) to introduce a whole new generation of voting restrictions.
In fact, the Shelby County decision did not eliminate the 1965 law’s substantive voting-rights provisions and left open the possibility for Congress to come up with a new formula for determining jurisdictions that might be required to seek preclearances. That won’t happen in the current Congress given the newly whetted appetite for voter suppression among Republicans north and south. But that’s true of nearly everything Democrats want to do, so why not include a national voting-rights drive as part of a symbolic, “messaging” platform?
More broadly, Waldman’s pessimism about federal action on voting rights reflects the often-misunderstood fact that there is no general constitutional right to vote in this country. Yes, there are prohibitions via constitutional amendments on certain kinds of restrictions of the right to vote (according to race, gender, age, or residency in the District of Columbia), but they don’t reach the level of establishing positive rights, and traditionally election administration has been left in the hands of the states. With voting rights having become an increasingly partisan issue and big swaths of the country in the hands of the anti-voting-rights party, the feasibility of a new constitutional amendment to finally make the right to vote fundamental is even dimmer than the likelihood of Republican-controlled states championing the franchise.
But as Jonathan Soros and Mark Schmitt argued in 2013, there’s potentially an enormous benefit to be derived from a push for a voting-rights constitutional amendment even if it is doomed never to succeed:
[E]ven if the odds of passage are daunting, a push to enshrine the right to vote in the Constitution would still have tremendous movement-building value.
A good example of an amendment campaign that built a movement is the Equal Rights Amendment (ERA), which fell short of being ratified in the late 1970s, but gave the emerging women’s movement a clear goal, provided it with a guiding mission, and prompted a significant national conversation about equality and the rights of all people. Through state and federal laws, the creation of state commissions on the status of women, and, above all, cultural changes in the family, schools, and corporate America, women have achieved many of the original goals of the ERA.
And short of a constitutional amendment, it’s worth the effort for Democrats to test the judicial limits of national voting-rights legislation. Even pallid efforts like the Help Americans Vote Act of 2002 (enacted in the wake of the 2000 election disaster) could become more meaningful with a more serious deployment of federal assistance to lure states into major improvements in voting standards and election infrastructure. And it’s entirely possible the federal courts will accept stronger standard-setting legislation from Congress if it’s reasonably flexible.
While a renewal of the once-robust bipartisan tradition of support for voting rights (as recently as 2006, George W. Bush and most congressional Republicans supported a renewal of the VRA with all the provisions the conservative Supreme Court would eventually find objectionable) would be ideal, Democrats have particularly strong moral and political motives for making this a priority at the national level. It’s one obvious way to make it clear to the Democratic-leaning constituencies typically targeted for voter suppression that one party’s antipathy won’t be met by another’s indifference. It’s a subject of equal interest to Democrats at every level of government. And over time, perhaps more and more Americans will be outraged to discover that voting is not a fundamental right in this country, and insist that politicians like Brian Kemp become as generally abhorred as the open racists whose legacy they have inherited. There’s no genuine principle of federalism or states rights that should make it easier to keep people from participating in this most basic ritual of democracy. And the right to vote should never depend on where one lives.