How Democrats can stop vote suppression

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.”

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.