Robert J. Berg
Voting Rights, Reforms, and the Democracy Crisis
Updated: Jan 7, 2022
The current challenges to voting rights, indeed to democracy, are almost unprecedented in our lifetime. It is a global issue. After advocating for democracy across the world, the U.S. is at a crossroads with its own democracy.
In the Freedom House’s “Freedom in the World 2021” report, which compiles numeric scoring under two broad categories: (1) Political Rights (under which are such factors as the electoral process, political pluralism and participation, and fairness of governmental functions including corruption and transparency); and (2) Civil Rights (under which are such factors as freedom of expression and belief, freedom of association such as the right to assemble, and the rule of law including equality before the law and due process), the U.S. is currently tied with Romania, Panama and South Korea as 56th on the lists of nations. In terms of changes in rankings in the Western Hemisphere, the 4 largest regressions over the past 8 years have been Venezuela, Nicaragua, El Salvador and the U.S.
Nationally, the 2020 U.S. election was a major success for democracy -- 61% of people voted ahead of election day (which is permitted in 43 states) versus 41% in 2016. Turnout was terrific by historic standards, particularly notable as a lot more youth voted -- 50% of the voters aged 18-29 voted versus 39% of this age group in 2016. There was amazing organizing, particularly in Georgia, which brought about the slim victory now enjoyed by Democrats in Congress, and helped secure a wider margin of victory for the Presidency. On the other hand, false charges that Democrats cheated led to an insurrection and a destructive national political movement headed by former President Donald Trump, who is currently working to undercut the past and future elections. The only good thing about these false charges and resultant manipulations of some State election laws is the call for national reforms of election laws.
As we all know, the current focus of Congress and President Joe Biden involves getting substantive legislation passed first before tackling election reform. So, priority is now given to physical and social infrastructure, debt limits and getting Senate confirmation of a full executive leadership team. It is hard to predict what will happen to the substantive and election legislation because of major splits in both parties: the moderates and progressives in the Democrats, as well as the fight within the Republican Party between the Mitch McConnell and Trump wings…with the Trump wing now ascendent. However, it is imperative for the President and Congress to focus on getting election reforms passed now since new state laws and new redistricting actions evidence the need for fair guidance and legal limits.
Status of U.S. Voting Rights
Election rules are currently being greatly upended, with negative results for democracy. The gates for this were opened by the Supreme Court in a June 2013 ruling with a 5-4 decision (Justice Roberts writing for the majority) that vitiated Section 5 of the Voting Rights Act of 1965 which required states with a record of discrimination to pre-clear any election reforms with the Department of Justice. This has led to a continuing spree of State governments enacting restrictions on voting, purging voter rolls, fighting over whether former felons could vote, and requiring stringent voter ID. The GOP has introduced over 361 voter suppression bills in 33 states. So far, 19 states have enacted 33 laws with such restrictions. At the same time, based on broader participation in the 2020 election, a number of Blue States have enacted laws to make voting even more accessible. The negative actions, however, are greatly out-weighing the positive actions.
Indeed, in 2021, more than 180 bills have been introduced, and some approved, that would go well beyond discrimination against specific voters by introducing the concept that voting outcomes could be over-turned by state legislatures, and that state authorities could select their own electors to the Federal Electoral College to vote differently than their populations had voted. Bills have been introduced in 16 states threatening election officials with felony prosecution or creating misdemeanor penalties for even inadvertent technical noncompliance with election rules. These actions are already driving out a lot of good people who managed honest elections. Obviously, the worst laws must be stopped by a fully engaged Justice Department and a judicial system that operates with alacrity.
At the same time, almost all the States, based upon the 2020 census results, will be adjusting Congressional district lines. This redistricting has already started with a few states having agreed results, but most are scheduled to complete their new district lines in early 2022.
What is new is a clear national strategy to bend rules to attack voting integrity through changes in standards and local personnel. Candidates, particularly voting officials like secretaries of state, are being proposed and chosen on the basis of whether they will, in essence, carry out to the letter and beyond the new restrictions on voting, whether they will welcome outside audits of election results, and whether they will go along with state legislatures overturning the electorate’s choices.
All of this turmoil and lack of fidelity to fair voting enables Trump’s challenges on the outcome of the last election to get a certain amount of traction well beyond January 6th. And these challenges are ongoing. On September 17,, 2021, former President Trump, under a letterhead reading “SAVE AMERICA President Donald J. Trump” wrote to Georgia’s beleaguered Secretary of State, Bradford Raffensperger, claiming that new evidence showed 43,000 Georgia ballots had an inadequate chain of custody and thus should be discarded. He ended his letter by saying:
“People do not understand why you and Governor Brian Kemp adamantly refuse to acknowledge the now proven facts, and fight so hard that the election truth not be told. You and Governor Kemp are doing a tremendous disservice to the Great State of Georgia, and to our Nation –which is systematically being destroyed by an illegitimate president and his administration. The truth must be allowed to come out.”
On October 10, 2021 the second-ranking House Republican, Steve Scalise, refused repeatedly to tell Fox News if Biden had won the presidency.
A number of Trump supporters say they see a civil war coming. Historian Heather Cox Richardson compares our era to the pre-Civil War era of the mid-1850s when people had to choose sides. On September 30, 2021 the University of Virginia Center for Politics and its Project Home Fire released a survey that asked people whether they agreed with the statement that “The situation in America is such that I would favor states seceding from the union to form their own separate country.” -- An amazing 52% of Trump voters agreed, with 25% in strong agreement while an even more amazing 41% of Biden voters agreed, 18% strongly.
How could all these adverse arguments and alternative facts get accepted by so many people? Perhaps because the depth of knowledge about civics in this country is so flawed. In polling, adults do not do well on simple questions about our governance (e.g., 44% cannot name the three branches of the Federal government. See also American Bar Association’s “2021 Survey of Civic Literacy”), and youth do more poorly. Danielle Allen, Professor at Harvard University, Director of Harvard’s Edmond J. Safra Center for Ethics and Co-chair of the commission responsible for creating the Our Common Purpose, has led a group of numerous academics to promote civic education. Their March 2021 report “Education for American Democracy Initiative” suggested national norms and goals, including by 2030, that 60 million students should have access to high quality civic learning opportunities. Almost half the states now mandate passing of a civics exam before high school graduation. A star example given in the report is the case of Maryland -- “Maryland codifies civics courses and content in social studies standards from pre-K to 12th grade. The state also mandates that specific civics course and project requirements must be completed before students are eligible to receive their high school diploma. Public school students in Maryland must take at least one year of civics or government courses; complete 75 hours of community service; and achieve a passing score on the Maryland High School Assessment in American Government” (For more information, see Maryland State Department of Education, “Graduation Requirements for Public High Schools in Maryland: Overview and Frequently Asked Questions,” Baltimore, 2018).
So, we have election rules being bent, redistricting being enacted in many states, tampering with election administration, a call by Trump, in essence, to fix the last election results and the next one, and inadequate knowledge about civics.
What is Being Done to Address These Challenges?
In 1984, USAID started an office to promote democracy in Latin America and shortly thereafter in Eastern Europe as well. Unfortunately, no such office exists to help America now. It is up to us to do it ourselves. Fortunately, there are lots of ideas on the table.
Of great importance is proposed Federal Legislation.
H.R.1 and S.1, also known as For the People Act of 2021, is every fair-minded election maven’s dream. It would require independent redistricting commissions, institute major reforms on campaign financing, including Federal finance for some races, establish a National Commission to Protect U.S. Democratic Institutions and numerous other protections in its 886 pages of new law. It passed the House on March 3rd of this year and was introduced in the Senate shortly thereafter, where it met strong opposition by Senator Joe Manchin and probably others who were quieter about their opposition. And in the House a number, having now read the bill, expressed buyer’s remorse.
In response, Senate Rules Committee Chair Amy Klobuchar gathered Joe Manchin, five other Democratic senators and one independent, Angus King from Maine, and the 8 of them introduced in the Senate on September 14th S.2747-- the Freedom to Vote Act, which keeps a number of key H.R.1 reforms such as automatic voter registration, early voting, same day registration, but adds standards for voter ID requirements, if States choose to have voter ID as 15 States now have. The Act would improve election practices by requiring paper ballots, sets standards for voting system security, and spells out criteria for redistricting, including the option (not requirement) for independent commissions. Notably it beefs up the Federal Election Commission (FEC), the civil campaign finance regulator, which was left moribund by the Trump Administration. Trump hampered the work of the FEC by not appointing enough commissioners to allow the Commission to reach a policymaking quorum. Four commissioners are needed out of an authorized total of six, yet for much of the last Administration only three commissioners were on board. This gap was only remedied on December 9, 2020 when the Senate confirmed three new commissioners, which marked the first time since 2017 that the full slate of six FEC commissioners was in office. The Freedom to Vote Act removes the financial lid on the FEC's budget, increases campaign transparency, and mandates work on cyber-security as well as work to expedite complaint processes.
The Freedom to Vote Act includes much more in its 594 pages, but doesn’t tackle head on campaign finance and several other problems, including provision for Federal enforcement. It is a lesser H.R.1, but still a major advance. Recent public polling shows that a majority in both parties support it. Senator Manchin claims he can find 10 Republican Senators to support it, but so far that has not been evident.
Next, the John Lewis Voting Rights Advancement Act of 2021 (H.R.4 and S.4263) would, in essence, restore Section 5 of the 1965 Voting Rights Act to have the Department of Justice enforce fairness in elections in states with a record of discrimination. It passed the House on August 24, 2021 on a straight party line vote: 219 vs 212.
There has been some talk about the need for an Electoral Vote Count Act of 2021 because of a clearly evident need to update the electoral college rules (now 150 years old).
At least three legislative remedies have been proposed in Congress to provide support and requirements for civics education. The largest one was introduced in 2020 by a bipartisan duo in the Senate: Senators John Cornyn and Chris Coons. It called for $1 billion in support for civics education. It wasn’t acted upon and has not been reintroduced this year. A very modest take on civic education was introduced this year (H.R.400) by several Representatives but so far it has not made it out of committee.
Beyond the above proposals, it is worth considering more in-depth reforms that would make the country a more vibrant democracy. The report many of us see blueprinting this was the 2020 report, “Our Common Purpose: Reinventing American Democracy for the 21st Century” by a commission organized by the American Academy of Arts and Sciences. Among the report’s recommendations were the following:
Substantially enlarge the House of Representatives to make it and the Electoral College more representative of the nation’s population;
Introduce ranked-choice voting in presidential, congressional and state elections;
Support adoption, through state legislation, of independent citizen-redistricting commissions in all 50 states;
Amend the Constitution to authorize the regulation of election contributions and spending to eliminate undue influence;
Pass strong campaign-finance disclosure laws in all 50 states;
Create a Federal election day on Veterans Day;
Establish, through congressional legislation, that voting in federal elections be a requirement of citizenship, just as jury service is in the states; and
Restore federal and state voting rights to citizens with felony convictions.
Recommendations like these put into perspective that the laws currently proposed in Congress are not nearly enough, but should be considered “a good start.”
Beyond Congress, the Courts can be powerful, of course. The main action in the courts so far has been challenges to redistricting. Notably, former Attorney General Eric Holder’s initiative, the Democratic National Committee’s Redistricting Committee, has successfully challenged a number of poorly thought-out redistricting over the last few years. We can expect more court challenges to voting restrictions. A core issue, it seems to me, is whether the states have the unfettered right to set election rules (as Senator Mitch McConnell now claims) or whether the courts can take opportunities to make clear the Federal government’s rights (and I would say obligation) to impose fair election rules, parallel to what Congress did in the Voting Rights Act of 1965.
Sadly, none of the Congressional bills on the table are aimed at defusing the build up to political violence across many parts of America. So far there is no legislative response to the January 6th insurrection, nor to the 94% of murders last year caused by right wing extremists (half of which were due to white supremacists). We are still in dangerous territory.
As we consider the Congressional actions that have been formally proposed, the political positions in the Congress on these issues could not be more different. During the last two years, Republicans have uniformly opposed any legislation to improve elections. We seem to have a replay of the Obama years in which opposition to Administration proposals is almost total. It is so dispiriting to the remaining moderates in the Republican party that principled opposition and options are so rare from their Party that some of their leaders, e.g., Christy Todd Whitman in the New York Times and Max Boot in the Washington Post (both on October 11, 2021) wrote that good Republicans should vote for Democrats to save the country from being captured by the radical right.
In contrast, the Democratic Party’s opposition to newly invigorated voting restrictions exists, but seems weak. The Democrats simply do not have a national Stacy Abrams who actively organizes repeatedly at the local level. Indeed, we have not seen a really effective ground game from the Party since Harvard’s Marshall Ganz organized a sweeping national field system for President Obama’s first election.
It may be understandable that President Biden has not yet clearly made a case for his legislative infrastructure agenda since that agenda is still under negotiation, but it is not understandable why he has not forcefully made the case for election security and fairness.
Attempting to fill the gap of an activist and constructive set of national political parties, there are a number of civil society groups that are notable for their activism on voting rights which include:
The Brennen Center for Justice, tracks voting rights authoritatively and occasionally sues.
538, the polling aggregator, is doing the best tracking on redistricting.
The Voting Rights Lab tracks every item on voting rights introduced in State legislatures.
Fair Fight, Stacy Abrams’ organization, does important field work.
Fair Elections Center works through legislation and litigation to remove barriers to voting.
Common Cause is pushing a National Popular Vote to replace the current electoral college. Their plan would avoid a Constitutional amendment by having an identical popular vote plan be voted by states representing 270 of the 538 electoral votes.
I wish I could add the AFL-CIO, which has a nice position on fair voting, but election reform is not a high priority with them. I also wish that these disparate groups, and the many other groups working around the country on these matters, might furnish more evidence of collaboration and common advocacy agendas.
Where Do Reforms Stand Now?
First and perhaps most importantly, let’s review pending Federal legislation on election reforms.
H.R.1 and S.1, For the People Act, morphed into the Freedom to Vote Act of 2021. On October 20, 2021 Senate Democrats attempted to introduce the bill for debate, but were defeated by unified Republican opposition, thus demonstrating that although Senator Manchin felt he could deliver 10 Republican votes in the Senate, he could not. A recent Data for Progress Poll found that 70% of likely voters support the Act., including 54% of Republicans.
Bills on Teaching Civics are not in sight.
Protecting and clarifying the Electoral College process is not a live issue. As Russell Berman of The Atlantic wrote in his article titled “Kamala Harris Might Have to Stop the Steal” on October 6th, Constitutional scholars are already worrying about what will Kamala Harris do when she presides over an Electoral College in January 2025 with crooked results presented to it, if we do not have clear rules of Electoral College procedure by then.
Almost as important are ongoing State actions regarding redistricting. Over the last few decades new algorithms have allowed states to redistrict with precision to achieve pre-ordained results. For example, the polling aggregator 538 reports that redistricting in Texas has resulted in 2 new Blue districts, one of which will pit two Democratic Congresspersons against each other. Numerous Red State redistrictings will change the balance rather dramatically to Red districts while reducing the number of contestable districts in favor of all Red zones. Texas is also a nice current example that shows redistricting continues more than ever to entail both political and racial discrimination. In Texas, White and Hispanic populations are each about 40% of the state’s total population. Yet, White districts now are expected to elect 19 Congressmen while Hispanic districts will elect 10. “Republicans have openly declared that with this redistricting cycle they intend to gerrymander a path to retaking the US House of Representatives in 2022.”
Clearly there is justification for impartial commissions to decide on fair redistricting, as proposed in H.R.1, but there is no prospect of that happening now. So, the only available course is legal challenges for fairness. While it is true that new mathematical models make it easier to verify that given states are tilting the table (Ibid.), this can only take place once the new district lines are announced, and then that data can be used in lawsuits. But such lawsuits are very laborious, expensive and subject to almost endless re-drawing of maps, as has taken place in some key states over the past few years. No case has yet been sent to the Supreme Court to challenge the full State sovereignty over redistricting.
What Can We Do?
We are in a critical time now when biased redistricting and voter suppression laws are plowing ahead. It is a time when extraordinary actions are needed. I’m sure that many informed people will have lists of their own to suggest, so I’m going to mention just a few ideas for your consideration.
Keep informed. There are a number of moving parts that are changing at far beyond the normal pace. Here are a few groups that can help you keep track.
About threats to democracy, there is Protect Democracy, founded by former high-level officials of both parties.
The Princeton Gerrymandering Project/Electoral Innovations Lab grades redistricting so one can quickly learn projected results of redistricting plans, e.g., Texas got an F in fairness, Virginia a B and New Mexico an A.
As noted, 538 has daily updates on redistricting.
Give money strategically. All of the groups mentioned in this article, and many others that are tirelessly working on voter reform, need funds.
Advocate. A number of us would say it all comes down to advocacy to bring about change. This can come in the form of raising awareness, increasing support, or influencing policy.
A key question is ‘Of all the main actions before Congress which one would be most important?’ Randy Perez, Program Director at the Voting Rights Lab in Arizona made the case for giving priority to the John Lewis Voting Rights Advancement Act at the October 6th Harvard University Ash Center’s conference, “Two Americas Emerging: Voting Rights in the States.” I agree with him because it would have real teeth in it by creating Federal supervision of wayward States.
There is also an important additional idea proposed for your consideration. We have a great big roadblock to progress on election reforms and protections, as well as social infrastructure and debt -- it is the filibuster and its need for reform. Molly Reynolds of the Brookings Center for Effective Public Management authored a book on filibusters in 2017 titled “Exceptions to the Rule: The Politics of Filibuster Limitations in the U.S. Senate.” The book is even more germane today. The thesis of her book, described by Brookings, is that most people believe, in today’s partisan environment, that the filibuster prevents the Senate from acting on all but the least controversial matters. But that knowledge is not exactly correct. In fact, the Senate since the 1970s has created a series of special rules that limit debate on a wide range of measures on the Senate floor. The details of these exemptions might sound arcane and technical, but in practice they have enabled the Senate to act even when it otherwise seems paralyzed. Important examples include procedures used to pass the annual congressional budget resolution, enact budget reconciliation bills, review proposals to close military bases, attempt to prevent arms sales, ratify trade agreements, and reconsider regulations promulgated by the executive branch. Thus, modification of filibuster rules is often doable and must be seen as normal and not impossible.
The rules covering the use of the filibuster can be changed by a simple majority vote of the Senate.
We saw how potent the idea of lifting the filibuster was in the recent debt ceiling debate, in which President Biden’s view that he might support filibuster reform got Senator McConnell to quickly cave. The question is: Can there be further serious reform of the filibuster? And here stand Senators Manchin and Sinema saying Maybe and No, respectively. It is not clear if a Senate traditionalist like President Biden will go for it. I liked reading in Bob Woodward and Robert Costa’s new book, Peril, about the fight last March over extending the Covid recovery plan and whether the weekly subsidy should be $300 or $400. Senator Manchin held firm for quite a while, but eventually had a serious discussion that led to a compromise. Indeed, the President, Senator Manchin and the Progressives are now in an active search for a middle ground to the social infrastructure bill. But that is merely business as usual in Congress. Can a filibuster compromise be hammered out by the leading Democrats? Obviously, they know that a Damocles’ sword hangs over them given the real possibility that the Republicans will regain control of Congress in next year’s election. But the counter-argument to that is that without reforming the filibuster bill so that, at minimum, voting rights legislation can be passed by majority vote, there will be a national failure to uphold democracy with even more dire consequences for the Democrats.
What is at stake is not a small matter now. Most likely it is whether the Democratic agenda can be approved and whether they will retain power. One powerful pollster, David Shor, thinks Democrats could lose up to 7 seats in the Senate given its current path, which would lead to a generational loss to likely radical right regimes that will undo much more of our democracy.
So here is where I come out. We each need to ask ourselves - how are we going to fight for the future of Democracy in our country?
My answers are:
Urge President Biden to force through a major reform of the filibuster rule no matter what it takes.
Urge lawmakers to be prepared for quick passage of the John Lewis Voting Rights Advancement Act and the Freedom to Vote Act.
Support as many of the relevant civil society groups working on these matters as your conscience and wallet will bear.
Originally published in the Harvard ALI Social Impact Review