Having spotted an argument for stubborn bipartisanship on voting rights, I decided to respond at New York:
Right now, voting rights in America are subject to a condition of partisan gridlock in Washington that preserves Republicans’ ability to wreak havoc on voting and election laws in the states they control. So long as centrist Democrats Joe Manchin and Kyrsten Sinema refuse to consider a carve-out for voting-rights legislation to liberate it from the Senate filibuster, that’s where things will stand at least through the 2022 elections, in which the GOP has a very good shot at busting up the current Democratic trifecta.
The Manchin-Sinema position is that voting-rights protections must be enacted by a bipartisan coalition to instill confidence in the system given the Trump-induced mistrust that metastasized during and after the 2020 elections, inspiring the attempted and ongoing MAGA coup to challenge or overturn the results. The central question now is what happens when (it’s no longer really a matter of “if”) it becomes unmistakably clear that Republicans won’t cooperate with “compromise” efforts like those in which Manchin has engaged twice this year.
At the invaluable Election Law Blog, Ohio State University professor Ned Foley answers the question by suggesting Democrats might just want to let the GOP do its worst for a while, assuming the “worst” doesn’t fall below some hypothetical “floor” of “minimal conditions necessary for an election to qualify as being small-d democratic.” His basic argument provides sort of a theoretical underpinning for Manchin’s reflexive belief (sincere or merely tactical, given the very red political coloration of his state) that election reforms that aren’t bipartisan simply aren’t worth enacting.
Before addressing Foley’s take, I will emphasize that his counsel of strategic surrender for Democrats is contingent, not absolute: If Republicans violate the hypothetical “floor” that Foley discusses but does not define, then he says Democrats have no choice but to override GOP voter-suppression measures if they can, even if such partisan action exacerbates the GOP’s “electoral McCarthyism” (his term for the Big Lie ideology of pervasive but never documented “voter fraud” claims).
But Foley pretty clearly thinks that what Republicans are doing in states like Georgia and Texas isn’t so very bad, and concentrates his argument on the importance of keeping Republicans from falling into an authoritarian pit forever:
“[W]hen as now the especially dangerous and distinctive paranoid conditions of electoral McCarthyism have taken root, and are growing, it seems as if that kind of one-party imposition of its electoral policy preference upon the other party that suffers from the paranoia of electoral McCarthyism has the potential of being extremely counterproductive. Indeed, it risks propelling forward the possibility of a reaction that would cause the society to fall below the floor of what’s essential for small-d democracy, thereby bringing out the circumstance that is exactly desired to be avoided.”
It’s less obvious how Foley (or Manchin) would ameliorate “electoral McCarthyism,” other than this very wishful thinking:
“Might it not be a smarter strategy to let Republicans write the rules for upcoming elections (as long as they remain within the realm of adequacy in terms of casting and counting votes), and then be able to say to them after they have lost, ‘Hey, we conducted the process exactly how you wanted it; what possibly gives you a basis for complaining with the result just because you lost?'”
There are two pretty big and obvious problems with this surrender strategy. The first is the most obvious: What if Republicans don’t lose in 2022 or 2024? If they win, they may very well be convinced that making it harder for their enemies to vote saved them, and ask for more helpings of the same satisfying meal. They will, moreover, have the power to do just that in more states, and to thwart Democratic voting-rights efforts in Washington for the foreseeable future. A Democratic surrender on voting rights that produces defeat would be accurately viewed as a betrayal of the loyal minority constituencies that lifted Democrats to victory in 2020.
The second flaw in the surrender strategy is it relies on the premise there is some silver bullet that will slay the Big Lie; that there is a single item feeding Republican “mistrust” of the electoral system that can be disproved by letting them indulge their malign fantasies. There really isn’t.
Yes, some Republican base voters believe without evidence that there is currently rampant “voter fraud” that can be prevented with greater vigilance. Others think voting by mail is inherently corrupt; since it hasn’t been outlawed anywhere, wouldn’t reestablishing the traditional Election Day — part of the lost America Donald Trump promised to restore — be an important agenda item to be pursued with renewed vigor? Still others think the problem is easily herded minority voters who want to vote themselves government benefits (the heart of Mitt Romney’s famous “47 percent” remark); they might favor a return to literacy tests or polls taxes. Some “constitutional conservatives” reject any electoral outcomes that undermine “natural rights” (e.g., to property or to fetal “personhood”) that they regard as having been established by the Founders and God Almighty. They aren’t going to wake up and recommit to small-d democracy.
And then you have the people who exist in both political parties, and indeed every political party from the beginning of time, who don’t bother with theories or evidence or “rights” at all and simply favor whatever electoral arrangements improve their chances of victory. What makes today’s Republicans distinctive in that respect is that their leader, the 45th president of the United States, exemplifies that attitude as much as Jesus Christ exemplified the Golden Rule. Indeed, winning at any cost is Donald Trump’s Golden Rule.
Even in the more “reasonable” precincts of the Republican Party, among people who don’t promote the Big Lie and all but visibly roll their eyes at Trump’s excesses, there is currently an iron and nearly universal opposition to the enhancement of any federally established voting rights, even those (most notably those protected by the Voting Rights Act of 1965) that their own party accepted and even celebrated until the U.S. Supreme Court began tearing them apart in recent years. So even if Foley is right and the current passion for vitiating voting rights at the state level burns itself out, does that mean bipartisan support for establishing a durable national floor for voting rights via federal legislation will magically return? There’s no reason to think so.
It’s regrettable that purely partisan avenues are the only ones available to Democrats right now on this and so many other crucial questions. And yes, wherever possible, Democrats should exhibit reasonableness unilaterally as the sole custodians of small-d democracy. A voting-rights bill imposed by a filibuster carve-out or (even less likely) budget reconciliation need not include every conceivable or advisable reform, so as to enable Republican claims of a “power grab.” Restoring the Voting Rights Act to its original dimensions might be enough, along with modest measures to clarify how post-election challenges work so the courts don’t have to litigate them endlessly.
If today’s wave of voter suppression in the States grows worse next year and after the midterms, the folly of Manchinism will become more evident than ever. You cannot restore bipartisanship, on voting rights or anything else of significance, by giving power to your extremist opponents in hopes they will come to their senses or become glutted with too much winning.
Here’s a good polling suggestion that Democracy Corps or anyone else Ruy talks to can do:
First, identify a LARGE pool of voters who fit the following description: they did NOT give Bush a positive approval rating individually as of election day AND/OR preferably AND were part of that majority who felt in polls as of election day that the country “was moving in the wrong direction”.
Then you determine if they did not vote for Kerry, did they (a) vote for someone else, especially Bush, or (b) stay home, after having voted in either 2002 or 2000, especially for a Democrat.
Those voters who did NOT give Bush a positive approval rating or felt that the country was “moving in the wrong direction” AND who voted for Bush or stayed home after having voted in the past for a Democrat can first be assessed for what percentage of the total number of voters they comprised. You need to first assess the percentage of those who actually voted as a percentage of the total vote, possibly with a breakdown in key states, and then check to determine how LARGE the number of voters who stayed home but were seriously potential voters based on recent voting for Democrats and their disaffection with the status quo was. These voters cost Kerry the election.
Now, WHY didn’t these voters vote for Kerry. Two issues seem prominent — they thought he was wishywashy or a flipflopper AND/OR they were concerned about the war on terror and did not have confidence in Kerry (the Bai distortion). Voters don’t always or generally give specific indications of why they voted they way they did or why they didn’t bother to vote, but there is where a decisive number of bodies are buried. You could also measure what IF those two groups of voters had turned on mass to Kerry? What would it have done to your constituency analysis. Prediction on the latter — add those voters who felt the country was going in the wrong direction but didn’t vote for Kerry to the Kerry column, by breakdown of category, and most of those gaps you are measuring in various social groups close like a mousetrap that has been sprung.
The mandate was for being successfully snookered by the mass media AND spinmeisters justifying the lying and the chorus of hounds that didn’t bark, including when spinning the polls, on the abovementioned issues. Another mandate for a rigged election, cashed in all the moreso as real the less real it is.
Everybody is so busy “serving” and “doing the job” that no one really serves democracy and all that is left is the hollow shell of a system as it goes down the tubes.