Republican Attacks on Voting Rights Are Racist and Hostile to Democracy

The Republican Party's assault on constitutional democracy continues unabated. Over 20 restrictive voting laws have already been enacted this year (the Brennan Center's Voting Rights Roundup is an indispensable resource for monitoring ongoing developments). And in the past two weeks two further Republican body blows were delivered to democratic equality.

First, on June 22 Senate Republicans exploited archaic Senate filibuster rules to obstruct the For the People Act from even being discussed on the Senate floor. Then this past Thursday (July 1), the Supreme Court's six conservative Justices ruled in Brnovich v. Democratic National Committee et al to uphold recently-passed Arizona voting restrictions, holding that Section 2 of the Voting Rights Act can be used to strike down restrictions only when they impose substantial and disproportionate burdens on minority voters. The majority decision held that while the Arizona restrictions might have negatively affected minority voters, it did not do so in a sufficiently "substantial and disproportionate" way; that affected voters had other options available to them; and that, in a nod to The Big Lie, "one strong and entirely legitimate state interest is the prevention of fraud." As the New York Times summed it up: "The decision, a test of what remains of the Voting Rights Act, suggests that challenges to many new measures making it harder to vote may not be successful."

This is a very serious blow to voting rights, and the outcry was quick and loud, and appropriately so. Election law expert Rick Hasen declared that with this decision the Court has not only "significantly weakened" the Voting Rights Act, but "has taken away all the major available tools for going after voting restrictions . . . and a time when some Republican states are passing new restrictive voting laws." The Brennan Center's Sean Morales-Doyle declared that the decision "did significant damage" to the Voting Rights Act "and to the freedom to vote."

The Nation's Elie Mystal was more sharp and direct: "Bigots Have Finally Accomplished Their Goal of Gutting the Voting Rights Act," explaining that "the Supreme Court's decision upholding voter restrictions pavs the way for widespread disenfranchisement of voters of color." A Washington Post piece usefully sums up this main line of criticism in "Some call voting restrictions upheld by Supreme Court 'Jim Crow 2.0. Here's the ugly history behind that phrase."

The claim that the Republican assault on democracy is a revival of "Jim Crow" has become a common trope since 2016, and especially in the 2019- 20 presidential election campaign, when many Democratic activists and candidates, including Joe Biden, compared Republican voting restrictions to Jim Crow (Biden first did this, to great controversy, back in May, 2019). This March Biden, now President, was just as explicit, declaring that the recent torrent of Republican efforts to restrict voting rights "makes Jim Crow look like Jim Eagle."

There is much truth to this claim.

"The New Jim Crow," a phrase widely associated with Michelle Alexander's seminal 2010 book of that title, most definitely names something that is very real, in the manifest forms of violence against Blacks that gave rise to the Black Lives Matter movement; in the broader carceral state that was the central topic of Alexander's book (subtitled "Mass Incarceration in the Age of Colorblindness"); and in the perdurance of racism and racial inequality more generally. This racism is now actively promoted by the Republican party, for which white supremacy has become the central theme. Indeed, since Trump's election, it is no longer even possible to speak of an "age of colorblindness"--a point made powerfully by political scientists Richard C. Fording and Sanford Schram in their recently published Hard White: The Mainstreaming of Racism in American Politics.

Furthermore, most recent Republican voting restrictions, like the Arizona laws, disproportionately harm people of color--African-Americans, Latinx, and Native Americans--and thus contribute both directly and indirectly to the reinforcement of racial inequality. The Voting Rights Act was and remains a landmark achievement of the civil rights movement, which was a movement centered on the inclusion of Black Americans, who had been betrayed by the end of Reconstruction and relegated to second-class citizenship. And its evisceration in recent years, which the recent Court decision has further advanced, represents a serious blow to civil rights and to the promise of multi-racial equality.

At the same time, the very vulnerability of the Act exposes an even greater and more widespread vulnerability of democracy that extends beyond the question of racism--the fact that the U.S. Constitution neither names democracy nor includes anything to codify the basic principle of democratic equality and free and fair elections based on the principle of universal adult suffrage.

The Voting Rights Act of 1965, designed to legislatively prohibit racial discrimination in elections and empower the federal government to enforce this prohibition, was basically regarded as a necessary follow-up to the post-slavery Fifteenth Amendment: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Section 2 of the Act, the one just gutted by the Court, virtually reiterates the Amendment: "No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color."

Like the Fifteenth Amendment, the Nineteenth Amendment similarly repudiates a form of discrimination: "The right of citizens of the United States to vote shall not be denied or abridged by the United States of by any State on account of sex." There is no provision of the U.S. Constitution that states, plainly, that all citizens have the right to vote in regular elections that are minimally free and fair. Nor is there any federal law that clearly codifies this basic principle of constitutional democracy. Section 4 of Article I of the Constitution is clear: "the Times, Places and Manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the Places of chusing Senators."

This is the fundamental problem we face, and that current Republican efforts to institute voting restrictions via state legislation both exploit and seek to exacerbate: states are empowered by the Constitution in a fairly broad way; existing legislation, such as the Voting Rights Act, is being eviscerated by the Republicans in control of state legislatures and the Court; and Congress lacks the will and the political power to do anything about it.

There is surely a racial dimension to this, insofar as the Republican party has become the party of Trump and of white supremacy, and it is using its power to weaken the Democratic party and to disempower one of its core voting blocs, voters of color and especially Black voters.

But the problem extends beyond race. It implicates the deeper and more fundamental fact that in the U.S. voting rights and electoral laws lack a firm and national legal foundation. And it also implicates the fact that the Republican party has become a genuinely authoritarian party, along the lines of Hungary's Fidesz and Poland's PiS (Law and Justice), hostile towards core features of pluralist democracy that relate to the right of citizens to advocate against and to contest political power. Like these parties, the Republican party is doing everything in its power to tilt the election field, and the political process, firmly in its favor, while severely limiting weakening political opposition.

Voting restrictions with a strong racial component are one form that this effort takes.

Voting restrictions targeting other groups, especially students, are another. Back in October, 2019, the New York Times clearly explained: "The Student Vote is Surging. So Are Efforts to Suppress It," making equally clear that it was Republicans, in Texas and elsewhere, who were doing the suppressing. This Spring much attention focused on the case of New Hampshire, where the Republican-controlled government passed legislation intended to severely limit the voting participation of out-of-state college students (last week an earlier, similar measure was struck down by the New Hampshire Supreme Court).

Legislation designed to empower state legislatures to override the results of certified democratic elections--currently under way in eight states, including Georgia--and to take control over election administration is another way the Republican party is seeking to retain its hold on power through undemocratic means. (Back in April, States United Democracy, Protect Democracy, and Law Forward jointly produced a report documenting these efforts entitled "A Democracy Crisis in the Making: How State Legislatures are Politicizing, Criminalizing, and Interfering with Election Administration").

These efforts to limit the freedom and fairness of the electoral process have been accompanied by efforts to limit the ability of left-leaning groups to dissent and to protest. As the New York Times reported back in April, "G.O.P. Bills Target Protesters (and Absolve Motorists Who Hit Them." According to The Hill, since January of this year Republican legislators in 34 states have introduced over 80 measures designed to curb protest (The ACLU monitors these efforts here).

In short, the threat to democracy is general, targeting core democratic values and core democratic constituencies.

While assaults on the Voting Rights Act demand critique and resistance for their racially discriminatory features, these assaults should also be seen is part of a broader assault on constitutional democracy itself.

Resistance to these Republican assaults can and should take a number of forms.

It is entirely appropriate and necessary for activists and commentators, especially Black activists and commentators, to call attention to the racism in play, and to the ways current voting restrictions resemble Jim Crow measures and reinforce racial inequality. The group Black Voters Matter plays an important role in resisting restrictions and in mobilizing voters by amplifying these concerns, and its "Freedom Ride for Voting Rights" campaign this summer has deservedly attracted much attention.

But it is equally important to avoid seeing the political danger here only or even mainly in racial terms. For if "Jim Crow" is one very real model for what Republicans are doing, the forms of "illiberal democracy," i.e., authoritarianism, being promoted by Hungary's Viktor Orban, Turkey's Raycep Erdogan, and even Vladimir Putin's Russia are also models. And while the Republican efforts surely threaten racial justice, they threaten all forms of justice, by shutting out a wide range of progressive constituencies and by subverting the democratic processes, precarious and limited to be sure, whereby these constituencies can press their justice claims.

The broader rhetoric of democracy, and of democratic justice, thus also deserves amplification. Stacey Abrams's pioneering organization Fair Fight gets this right, and its website states it best: "Democracy works best when we put in place the guard rails that ensure every American has an opportunity to make their voice hear and to be fairly represented."

Abrams's group is currently organizing a campaign, Hot Call Summer, designed to mobilize young voters of color to support the For the People's Act and to work more generally in defense of voting rights. At the same time, Fair Fight is an emphatically multi-racial group dedicated to advancing the general cause of democratic fairness. A similar approach animates Deadline For Democracy, an Indivisible-led coalition that includes the Declaration for American Democracy Coalition, Stand Up America, End Citizens United Action Fund, Common Cause, Fix Our Senate, Advancement Project, Transformative Justice Coalition, Just Democracy, C.W.A., S.E.I.U., Center for Popular Democracy, and over 80 other organizations. Like Abrams's effort, this coalition is focusing attention on a massive mobilization behind the Act during the July Congressional recess.

The rhetorical challenge facing democracy activists is to link two claims together: that the gutting of the Voting Rights Act is an attack on democracy that is particularly harmful to citizens of color, and is a symptom of ongoing racism; and that the Republican party is waging a broader assault on constitutional democracy that limits the voting rights, and broader civic rights, of all citizens, and which requires a broad-based, multi-racial defense of democratic fairness and democratic equality.

The political challenge is of course greater: to mobilize sufficient pressure to override Republican obstruction in the Senate; gain passage of the For the People Act and the John Lewis Voting Rights Act; and to mobilize a 50-state effort to defeat the Republicans in 2022 and 2024, and thus defend and extend Democratic control of the national government.

The alternative-Republican control of the national government as well as most state governments-would be a disaster for the politics of social, economic, and racial justice and for the fate of constitutional democracy itself.

It will take much political savvy and much good fortune to avert this disaster.