Photo-Illustration: Intelligencer. Photo: Getty Images
the national interest

Why Biden’s Losing Fight for Voting Rights Was Still the Best Plan

You can’t outorganize voter suppression without taking a stand.

Photo-Illustration: Intelligencer. Photo: Getty Images

Senate Democrats are devoting this week, like the previous week, to pushing a bill everybody knows will fail. Their caucus is united behind the Freedom to Vote Act, a bill safeguarding basic voting rights, but two senators, Joe Manchin and Kyrsten Sinema, refuse to alter the filibuster that allows Republicans to block it.

The failure of it all naturally raises the question of why the Democrats are bothering. Several voting-rights experts complain to Grid about the Democrats’ strategy, which Jeff Maurer calls “impotent and embarrassing.”

Notably, the tactical critics of the Democrats’ strategy support the bills on substance and wish Manchin and Sinema would agree to change the filibuster to pass them. Their complaint is with the political decision to keep beating their heads against the filibuster wall.

The first objection to the Democrats’ strategy is that it relies on rhetorical exaggeration, when the effect of voter-suppression laws is negligible. It’s true that President Biden has regrettably engaged in a lot of hyperbole around voting rights that has made it easier for conservatives to discredit his case. To label modern Republican voter suppression “Jim Crow on steroids” gets it backwards: Jim Crow was voter suppression on steroids. But the newer, shrunken version of voter-suppression tactics, while significantly less sinister than the vintage segregation-era methods, is still quite sinister indeed.

While these measures differ in their component elements, voter-suppression laws all share the common objective of winnowing the electorate by making voting less convenient. (Conservatives reliably lash out when anybody describes their agenda as “making it harder for people to vote,” but they are perfectly open about their belief that too many people vote because voting is too easy.)

And it is also true that research on previous voter-suppression bills has found little or no impact on voter turnout. But to leap from this finding to the conclusion Democrats need not freak out about the current wave of voter suppression is to make two key assumptions that may well be wrong.

First, just because the most recent voter-suppression laws had little net effect doesn’t mean the newer ones won’t, also. Republicans are certainly capable of learning by doing and perfecting their legislative craftsmanship to achieve their goal of discouraging turnout (which, again, conservative often happily admit). Specifically, the 2021 wave of voter-suppression laws often incorporate electoral subversion — discounting or disregarding legally cast ballots — along with voter suppression. Creating vastly more rules cracking down on voting and preventing officials from helping people vote creates more potential legal violations that Republican officials can seize upon to challenge vote totals. They have simultaneously created conditions for disputing more ballots while making it easier for Republicans to overturn the results on the basis of disputed ballots. You can’t simply assume the effects will be as small.

Second, it is true that previous voter-suppression laws have had minimal effect, but it would be more accurate to say Democrats and voting-rights activists have overcome the effect of voter-suppression laws by organizing against them. The way that form of organizing works is by pounding home the message that Republicans are trying to prevent Black people from voting, an argument that has the benefit of being true.

Democrats are planning to mobilize their voters this way again in November. But when they mobilize their voters against voter suppression in the fall, the voters are going to want to know what Democrats did to block those laws. They can’t very well organize against voter-suppression laws if they haven’t tried to fight those laws in the first place. Devoting a week or so of national debate to Democratic efforts to pass voting-rights bills seems like a necessary part of a countermobilization strategy.

Critics of the Democrats’ voting-rights strategy complain that they should have instead focused on trying to amend the Electoral Count Act, a poorly designed 19th-century law governing how to handle Electoral College disputes. The “foreordained failure” of the voting-rights push, argues Ross Douthat, “should have been the prelude to negotiations on much narrower terrain — a focused attempt to prevent election subversion, via a rewrite of the Electoral Count Act that some Republican senators seem willing to consider.”

Fixing the Electoral Count Act would be a worthy step. But it’s hardly much protection against Republicans either suppressing the vote before the election or undermining the result afterward. The fundamental problem is that if you’re worried about Trump goons in Congress disregarding valid state totals, you can write the law to make the state-certified totals presumptively valid — but that would make it easier for Trump goons at the state level to submit phony Electoral College results, and harder for Congress to disregard them. Alternatively, if you’re worried about Trump goons at the state level, you can give Congress more power, but that exposes you to the alternate risk.

If you want to guard against both forms of partisan-election subversion — state and federal level — you can hand more power to the courts. That’s probably superior to the status quo, but keep in mind that Republicans have a hammerlock on the Supreme Court and are probably going to decide any disputed election in their party’s favor if the law gives them even the flimsiest pretext to do so.

Now, maybe the Democrats’ plan to stage a big fight over voting rights will backfire. But the grim truth is that Democrats don’t have a clear strategic win. They are fighting against a party that has taken on an increasingly authoritarian cast, and even the “moderate” Republicans have taken a position — that the federal government has no right to erect voting-rights protections — that would have been considered extreme a couple decades ago. Alternative strategies, like backup quarterbacks, always look more attractive when the first option is losing. But sometimes there isn’t a better strategy than fighting like hell and hoping for the best.

Biden’s Losing Fight for Voting Rights Still the Best Plan