Voting Rights and the Assault on U.S. Democracy
For the People Act Analysis Vol. I
I recently wrote about the Biden administration’s latest major piece of legislation – the American Rescue Plan – and what it did and did not include. I argued that, although it included important provisions which move the U.S. and the economy in the right direction, there are many problems which still exist. My editorial emphasis was that we therefore need to maintain political momentum to deliver further progress towards a more just economy.
One reason why political momentum is so crucial at this pivotal point in American politics relates to how fragile our democratic republic is, and how opponents of progress seek to exploit such vulnerabilities. Whether you look to the fall of the Roman Republic, or Germany’s post-WWI Weimar Republic, the inability of democratic governments to properly function and political violence often precede fallen republics rising from the ashes as autocratic empires. Fixing democracy is often complicated, and disaffected people are all too frequently tempted by the simplicity of crowning a monarch instead.
While our democracy faces many problems, the Senate could address several such problems by sending an important piece of legislation to President Biden’s desk. This bill is known as House Resolution 1 in the House of Representatives or S. 1 in the Senate: the For the People Act. Although this Act passed in the House of Representatives, this bill is losing momentum in the Senate. I want to address why it is losing momentum, why recent assaults on democracy highlight the need for such legislation, and what the For the People Act does to preserve our democratic republic.
The For the People Act would help address many fundamental issues surrounding free and fair elections, which are actively threatened by voter suppression laws and a broken campaign finance system. While researching these issues, I also learned from an interview with a U.C. Irvine law professor about how “election subversion” – the manipulation of election rules by partisan officials with the intent of handing victory over to the loser of an election, such as by asking an election official to “find 11,780 votes,” like former President Trump asked the Georgia Secretary of State to do – also poses a grave threat to our democracy. Election subversion and voter suppression are incompatible with democracy.
Because there are many issues addressed in this legislation, and I want to discuss the historical context of several aspects, I will cover these details throughout a series of articles. This first article in the series will focus on voting rights, while subsequent articles will examine campaign finance and ethics reforms. Like my D-Day Reflections article, in which I outlined historic and recent assaults on democracy, I want to again focus more on political developments before returning to the political economy in future articles. Consider this another free sample of future subscriber-only content.
While I am neither a lawyer nor an expert on election laws, I nevertheless want to help raise awareness for these important issues. The For the People Act may not address every single threat to free and fair elections, and I would not doubt that certain aspects could be improved – both in terms of accomplishing stated goals, and withstanding legal scrutiny from the conservative majority in the Supreme Court – but I wholeheartedly support the broader goals of such legislation. Without free and fair elections, and a government that represents the interests of the people, then we risk losing the possibility of progress; we may even begin regressing and losing what rights our ancestors fought to secure.
I hope that you also agree that such reforms are important after considering the increasing severity of recent assaults on democracy.
The Assault on Democracy
The assault on American democracy has gotten to the point that a growing list of roughly two hundred “scholars of democracy” – professors of history, political science, constitutional law, and other relevant fields – have signed an open letter stating their concern for our political situation. The excerpt from that letter shown below summarizes the threat posed by recent events:
Democracy rests on certain elemental institutional and normative conditions. Elections must be neutrally and fairly administered. They must be free of manipulation. Every citizen who is qualified must have an equal right to vote, unhindered by obstruction. And when they lose elections, political parties and their candidates and supporters must be willing to accept defeat and acknowledge the legitimacy of the outcome. The refusal of prominent Republicans to accept the outcome of the 2020 election, and the anti-democratic laws adopted (or approaching adoption) in Arizona, Arkansas, Florida, Georgia, Iowa, Montana and Texas—and under serious consideration in other Republican-controlled states—violate these principles. More profoundly, these actions call into question whether the United States will remain a democracy. As scholars of democracy, we condemn these actions in the strongest possible terms as a betrayal of our precious democratic heritage.
Unfortunately, although the intensity of such anti-democratic efforts has increased in recent years, these types of tactics have been employed throughout American history. When our Constitution was first written in 1787, many people lacked the right to vote and lacked proper representation. Article I, Section 2 of the Constitution initially contained a clause which said (emphasis added is mine):
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
We can already see from this “three-fifths compromise” how people were divided into separate, unequal groups: “free Persons” and “three fifths of all other Persons”. It was not until nearly one-hundred years later, following the U.S. Civil War, that former slaves were granted citizenship and the right to vote, which required multiple Constitutional amendments. Even then, it would take another several decades before Black women, or any woman, could vote. These Constitutional amendments still did not prevent former Confederate states from trying to circumvent the spirit of the law, or the essence of what the law was trying to accomplish, while still technically following the letter of the law.
Despite the Fifteenth Amendment to the U.S. Constitution specifically outlawing the denial of a citizen’s right to vote “on account of race, color, or previous condition of servitude”, former Confederate states tried to do just that. Among several other strategies employed, they implemented poll taxes which former slaves frequently could not afford, and required literacy tests which were designed to be impossible to pass. In order to avoid denying white voters’ rights in the process of disenfranchising Black citizens, Southern legislators designed these poll tax and literacy test requirements to have an exception known as the “grandfather clause”. This grandfather clause basically said that, if your grandfather could vote, then you don’t have to pay the tax or take the literacy test.
The law did not specifically say that “white people are exempt from taking these literacy tests” – or that “only Black people have to pay these poll taxes before they are allowed to vote” – but whose grandfathers could not vote? Obviously, the grandfathers of former slaves could not vote; “free Persons” and “all other Persons” had drastically different family histories. These anti-voting laws were thinly veiled attempts at preventing former slaves and their descendants from voting. Unfortunately, yet perhaps unsurprisingly, a recent Supreme Court case similarly noted that “…new provisions [restricting voting and voter registration] target African Americans with almost surgical precision,” suggesting that tactics just like those of the past are still being used to obfuscate the true targets of voter disenfranchisement.
The recent onslaught of voter suppression is being carried out under the pretext of alleged widespread voter fraud, the claims of which are unsupported by evidence or data. The Heritage Foundation – a conservative, Koch Foundation-funded think tank whose talking points are frequently parroted by Republicans – maintains a database of confirmed instances of voter fraud. Although conservatives argue that these confirmed cases prove the need for sweeping voter suppression laws, I agree with the Brennan Center analysis asserting that the Heritage Foundation’s own data proves the opposite:
Inadvertently, the Heritage Foundation’s database undermines its claim of widespread voter fraud.
Out of the billions of votes cast since 1982, the Heritage Foundation database currently notes 1,328 cases of various types of voter fraud. Doing some quick napkin math, even if there were only 3 billion votes cast – which is likely underestimating the total, given the Brennan Center’s count of over 3 billion votes as of September 2017 – this would mean that 0.00004427% of votes, or less than one ten-thousandth of one percent, of votes cast during this period would have involved some form of voter fraud. Republican lawmakers want to potentially disenfranchise millions of eligible voters in order to make a virtually non-existent crime more difficult to commit.
Despite experts and several lawmakers sounding the alarm, warning that the very foundations of our democracy are under attack, many in the Democratic party establishment are essentially throwing their hands up. However, one lawmaker who refuses to give up, who continues to warn of our precarious situation and strive for meaningful solutions, is Vermont Senator Bernie Sanders. In a recent editorial article published in Foreign Affairs, Senator Sanders wrote:
The primary conflict between democracy and authoritarianism, however, is taking place not between countries but within them—including in the United States. And if democracy is going to win out, it will do so not on a traditional battlefield but by demonstrating that democracy can actually deliver a better quality of life for people than authoritarianism can. That is why we must revitalize American democracy, restoring people’s faith in government by addressing the long-neglected needs of working families. We must create millions of good-paying jobs rebuilding our crumbling infrastructure and combating climate change. We must address the crises we face in health care, housing, education, criminal justice, immigration, and so many other areas. We must do this not only because it will make us more competitive with China or any other country but because it will better serve the needs of the American people.
While Senator Sanders is raising concerns about losing our democracy to authoritarianism, his colleagues are making excuses about why they are not willing to do anything about it.
Gridlock and Dissipating Political Momentum
During the same weekend in which I published an article outlining the horrors that often follow fallen democracies, the corporate Democrat Senator Joe Manchin published an op-ed making excuses about why he will not vote for the For the People Act. Like others pointed out, one of the first things I noticed when reading Manchin’s piece was that I could not find a single substantive objection to the For the People Act; he is only voting against it because not a single Republican is willing to do so either.
Manchin did recently release a compromise version of the bill, stripping out key provisions in the process. The compromise also includes voter ID laws, which might sound reasonable if you’re unaware of the underlying data, but the Brennan Center analysis once again puts this in perspective:
In reviewing decades of cases and billions of votes cast, the Heritage Foundation has identified just 10 cases involving in-person impersonation fraud at the polls (fewer than the number of members on the President’s Commission). Heritage thus confirms what extensive prior research has shown — it is more likely that an individual will be struck by lightning than impersonate another voter at the polls.
At the time this article is written, I count fourteen cases mentioning “Impersonation Fraud at the Polls” in the Heritage Foundation database, out of billions of votes cast. Despite a complete lack of evidence of widespread voter impersonation, even Senator Manchin supports this nonsensical solution in search of a problem. To be fair, this aspect of Manchin’s compromise would mitigate certain voter suppression risks associated with voter IDs – because it would allow alternative forms of identification, such as utility bills – but I cannot find any statement from Manchin justifying such an unnecessary provision.
I also cannot find an explanation for why certain provisions were cut out, nor can I find an explanation of how many Republican Senators Manchin expects to vote for this version of the bill. What I did find, as you might expect, is a statement by Senate Minority Leader Mitch McConnell saying that “All Republicans will oppose” this unnecessary compromise. Senator Manchin appears to be compromising for the sake of compromise, weakening the legislation without gaining any Republican support in the process.
Predictably, when the bill came up for a vote on whether to simply debate its provisions in the Senate, all 50 Republicans voted against having such a debate. Because of how Senate filibuster rules require 60 votes to begin debate on a bill – except in instances where filibuster rules do not apply, such as when budget reconciliation is used – the Senate could not even begin to discuss what should or should not be included in this legislation.
While we have neither heard the Senate debate the For the People Act, nor a coherent argument against it from Senator Manchin, we already have a good idea of what conservative arguments against it we will hear. Unlike Manchin, the Heritage Foundation could at least produce a list of objections to the Act, contrived and misguided though they may be.
However, the true conservative agenda is not a secret. Co-founder of the Heritage Foundation, Paul Weyrich, explained the conservative voting rights agenda back in 1980 while giving a speech at an event which Ronald Reagan also attended:
Many of our Christians have what I call the “goo goo” syndrome: good government. They want everybody to vote. I don’t want everybody to vote. Elections are not won by a majority of people, they never have been from the beginning of our country, and they are not now. As a matter of fact, our leverage in the elections – quite candidly – goes up as the voting populace goes down.
This is their true agenda: reducing the voting populace to increase Republican leverage in elections.
Undemocratic institutions, like the Senate and the Electoral College, already give the Republican party a disproportionate advantage in electoral politics, but this is apparently not enough. For example, the Democratic candidate won the popular vote in seven of the past eight presidential elections – with the one exception being George W. Bush winning reelection against John Kerry, and the popular vote, in 2004 – yet in this time, Republican presidents held office for twelve years, appointed five of the nine current U.S. Supreme Court Justices, started multiple wars, and, in many ways, accelerated America’s descent towards authoritarianism. Imagine how differently things might have turned out if the people, rather than the Electoral College, decided who wins the presidency. Still, the Republican party seeks more power, regardless of how many people vote for them.
In an ostensible effort to appear reasonable in the face of such assaults on democracy, Senator Manchin claims he would vote in favor of another important, but limited, bill aimed at preserving free and fair elections. The John Lewis Voting Rights Advancement Act would indeed be a step in the right direction, as it would functionally restore the Voting Rights Act of 1965, which the conservative majority in the U.S. Supreme Court effectively nullified in 2013. While I would also support passing this Act, the open letter written by scholars of democracy that we discussed previously also addresses why passing this bill alone is insufficient:
A new voting rights law (such as that proposed in the John Lewis Voting Rights Act) is essential but alone is not enough. True electoral integrity demands a comprehensive set of national standards that ensure the sanctity and independence of election administration, guarantee that all voters can freely exercise their right to vote, prevent partisan gerrymandering from giving dominant parties in the states an unfair advantage in the process of drawing congressional districts, and regulate ethics and money in politics.
I could not agree more. Given the variety of strategies aimed at undermining people’s right to vote, establishing minimum standards to which all States must adhere is crucial. Let us examine certain solutions the For the People Act provides to create such voting standards.
The For the People Act of 2021 Voting Standards
The full text of the For the People Act is over 800 pages long because of how many different issues it addresses. Like legislation we’ve discussed previously, this bill essentially includes several smaller individual bills into one broader, more comprehensive piece of legislation. The Senate also has an excellent summary of the Act, as they often do for large bills, which boils down to just over twenty pages of key inclusions.
Although I won’t discuss every single detail, we should understand the general provisions included in this Act. The Act is divided into three important sections: voting, campaign finance, and ethics. This article will cover voting standards, and future articles will examine campaign finance and ethics reforms. Voting reform is further subdivided into three major sections: election access, election integrity, and election security.
Election access reform includes increased accessibility and overall modernization for voter registration, such as automatically registering eligible individuals rather than requiring people to surmount unnecessary administrative hurdles. Provisions increasing accessibility are often paired with measures preventing interference with such processes, which would preemptively invalidate some of these Republican voter suppression laws under consideration.
The For the People Act establishes clear conditions for when voters can be removed from official lists of eligible voters, and also for restoring the right to vote. The latter includes restoring the right to vote for individuals convicted of a felony after they have served their sentence. Despite the scare tactics surrounding this issue – such as when detractors will say something along the lines of, “so you want to allow murderers to vote?” – I personally don’t see any reason they should not be allowed to vote, and neither does virtually every other western democracy.
I mean, what exactly would individuals with felony convictions vote for that would be so dangerous? They would get the same ballots every other voter gets. These people would not receive some special ballot that lets them vote for legalizing atrocities. Our democracy should stand for one person, one vote; we should stop being one of the only western democracies which permanently denies voting rights to individuals with felony convictions.
In addition to increasing accessibility for voter registration and election participation, some provisions mention ranked-choice voting systems, similar to the one being used in New York. I hope that we can also have a smoother rollout than what happened in the New York City mayoral election, but the For the People Act provides a variety of resources aimed at improving our election infrastructure. One such inclusion involves conducting a study on the impact of, and how best to implement, a ranked-choice voting system nationwide. If voters had the ability to rank candidates according to their preference, rather than having to choose only one, then voters could more freely vote their conscience without worrying about “wasting” their vote on a potentially risky candidate.
For example, consider a hypothetical election with three candidates: A, B and C. Let’s say a voter mostly agrees with candidate A’s policies, but thinks that candidate B has a better perceived chance of winning the election – despite only agreeing with a handful of B’s policy stances – and the voter completely disagrees with candidate C’s policies. With a ranked-choice system, the voter could rank A and B according to their preference, and do so without worrying about potentially benefitting candidate C’s chances of winning by not voting for C’s strongest opponent. Although this Act would not immediately implement such a system, it would pave the way for ranked-choice voting in future elections. This would reduce the number of people simply voting for the lesser of two evils, and instead allow voters to vote for a candidate they actually support.
Several other important studies are also authorized throughout the Act. One such study would be conducted by the Government Accountability Office, examining voter turnout rates by different age groups. Another study would help improve existing vote-by-mail systems and facilitate other States’ transitions to vote-by-mail systems. There is even a study authorized to examine optimal ballot design, perhaps so that situations like the Florida 2000 presidential election with “hanging chads” does not happen again. Having a better understanding of these and other issues surrounding elections and voting is essential to making additional progress.
The Act also enacts common sense improvements of existing systems which already work. These improvements include increasing the accessibility of voting by mail – while also preventing States from implementing additional restrictions on voting by mail for voters who are otherwise eligible to vote in that election – and requiring accessible early voting. Although Mitch McConnell said doing so would somehow be “socialist”, this Act would also make Election Day a national holiday every other year. Both provisions would increase access to voting for people who have to work for a living and who face difficulty in reaching polling locations on a Tuesday.
While certain allegations of election security deficiencies are exaggerated, and in some cases outright lies, the For the People Act still addresses several potential risks surrounding elections. Most importantly, in my humble opinion, is the requirement for durable, voter-verified paper ballots to be used even if an electronic system is also used. Because of how insecure electronic voting systems alone are, having a paper trail to verify election results is essential for preventing election subversion, and for preserving free and fair elections. A requirement for voting machines used in elections to be manufactured in the United States also appears in this section. Beyond having the potential to create good U.S. manufacturing jobs, perhaps enacting this requirement would mean we will no longer have to listen to Trumpian conspiracy theories about voting machines made by the ghost of Hugo Chávez, the deceased former president of Venezuela.
These security measures dovetail with the second major category under the voting reform heading, which relates to election integrity. One key aspect of upholding election integrity involves ensuring that voters choose their elected representatives, rather than entrenched lawmakers choosing their voters. This, of course, means establishing standards by which the boundaries Congressional districts are redrawn, so that partisan “gerrymandering” is no longer common practice. This Act would implement independent redistricting commissions and provide clear rules regarding the role of courts in redistricting.
Parts of the election integrity legislation also include giving a voice to other disenfranchised voters, including Native Americans and residents of U.S. colonies – oops, I meant U.S. “territories”. The United States isn’t a colonial empire, right? We’re a democracy where our leaders derive their authority from the consent of the governed, right? We believe in concepts like “no taxation without representation,” right? Well, the hundreds of thousands of citizens residing in Washington, D.C. aren’t exactly represented in this manner.
Although the For the People Act alone would not grant D.C. statehood, it would enshrine certain relevant findings, such as the following:
(1) The 705,000 District of Columbia residents deserve voting representation in Congress and local self-government, which only statehood can provide.
(2) The United States is the only democratic country that denies both voting representation in the national legislature and local self-government to the residents of its Nation’s capital.
(3) There are no constitutional, historical, fiscal, or economic reasons why the Americans who live in the District of Columbia should not be granted statehood.
Despite these and other salient reasons to grant D.C. statehood, the Heritage Foundation once again argues against this. One of their legal fellows testified before Congress on the matter in March 2021, and essentially suggested that D.C. residents are represented because they can put political signs in their yards and bumper stickers on their cars. Seriously, that was their argument. Here is the exact quote from that testimony:
How many committee members on their way to this hearing today passed yard signs, banners, or even billboards advocating DC statehood? I certainly did. Nowhere else in the country would it be possible to reach so many members of Congress so easily.
I suppose if lawmakers actually listened to the will of the people, and passed overwhelmingly popular policies like Medicare for All, then Smith might have a point. However, all too frequently our politicians listen to the billionaires and corporations funding their campaigns, like the Koch network-affiliated entities which also fund the Heritage Foundation. As Rhode Island Senator Sheldon Whitehouse said last year, “There is a lot of hard-to-explain hypocrisy and rush taking place right now, and my experience around politics is that when you find hypocrisy in the daylight, look for power in the shadows.” Perhaps the For the People Act will allow us to shine light on the dark money flowing through our political system, but we will cover this in further detail throughout the next article in this series.
Between the voting rights provisions, securing elections against subversion, and implementing campaign finance and ethics standards, these improvements are long overdue, but the Senate has the opportunity to enact many important changes before the next election.
The Ongoing Effort to Protect Democracy
The Senate continues its efforts to protect the right to vote for all eligible voters, but there is a long way to go, and we are running out of time. Experts estimate that these reforms, if they are to take effect before the 2022 midterm elections, the For the People Act would need to be passed this Summer.
However, passing this type of legislation will likely require more than a simple majority to pass, due to undemocratic filibuster rules. As we discussed previously, the Senate failed to even begin debating the Act on June 22, 2021, after all fifty Republican Senators voted against beginning debate. This raises serious questions about Senator Manchin’s compromise gaining ten Republican votes to overcome the sixty-vote threshold associated with the filibuster, and what more can be done without modifying or abolishing the filibuster.
I will address Senate filibuster rules, campaign finance and ethics reforms included in the For the People Act, and the ongoing effort to protect democracy in future articles.
Thank you for reading my newsletter and taking the effort to learn about making the world a better place. I look forward to hearing your thoughts on how we can make progress towards a more just economy.
-JJ
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