“Fueled by Trump’s election lies, Republicans have doubled down on a brazen effort to restrict rights – and more danger lies ahead
Last modified on Wed 24 Mar 2021 06.03 EDT
Twenty twenty-one should have been a year to celebrate for LaTosha Brown.
After decades of organizing Black voters in Georgia, Brown and other organizers in Georgia broke through. Defying expectations, turnout among Black voters surged in US Senate runoff races, powering two Democrats to historic victories. It came two months after Georgia saw record turnout in its November election, helping Joe Biden become the first Democratic presidential candidate to carry the state in nearly three decades.
This success story was mirrored across America. Despite a lethal pandemic, a staggering 159m votes were cast, 67% of eligible voters, the highest turnout in a presidential election since 1900. Such turnout is even more remarkable considering that millions of Americans adopted an entirely new way of voting, casting their ballots not on election day but ahead of time, either in person or by mail.
There wasn’t a meltdown in the election process that many feared early on in the pandemic. The United States Postal Service, under attack from Trump and his allies, delivered ballots on time. Officials found no evidence of widespread fraud or malfeasance during the election. By the time they declared the 2020 election “the most secure in American history”, a larger truth was apparent: democracy had prevailed.
But 2021 has been far from a celebration of democracy. It’s been the opposite – American democracy is under attack.
Seizing on Donald Trump’s lies about fraud in the 2020 election, Republicans have launched a brazen attack on voting, part of an effort to entrench control over a rapidly changing electorate by changing the rules of democracy. As of mid-February, 253 bills were pending to restrict voting in 43 states. Many of those restrictions take direct aim at mail-in and early voting, the very policies that led to November’s record turnout.
“The fragility of democracy has been exposed at levels that I think even white America was blind to,” said Brown, a co-founder of Black Voters Matter.
Republicans have openly talked about their intentions. “Everybody shouldn’t be voting,” John Kavanagh, a Republican in the Arizona state legislature, told CNN earlier this month. “Quantity is important, but we have to look at the quality of votes, as well.”
Some Republicans say that their efforts to put new voting restrictions in place are part of an effort to restore confidence in elections and prevent voter fraud, which is extremely rare.
But others have shown that their motivation is anti-democratic. Trump dismissed proposals to make it easier to vote last year by saying: “You’d never have a Republican elected in this country again.” And this month, Michael Carvin, a lawyer representing the Arizona Republican party, said something similar when Justice Amy Coney Barrett asked him what interest the party had in defending two Arizona voting restrictions. Lifting those restrictions, Carvin said, “puts us at a competitive disadvantage relative to Democrats. Politics is a zero-sum game.”
More danger lies ahead. Later this year, Republicans in many states will redraw electoral districts for both congressional and state legislative offices across the country, something the constitution mandates once per decade. This will give Republicans an opportunity to pack GOP-friendly voters into certain districts while spreading Democratic voters thin across others, further distorting democracy and ensuring their re-election.
And all of this comes at a moment when the US supreme court appears wholly uninterested in protecting voting rights. The increasingly conservative supreme court has signaled in recent years that it is not going to stand in the way of lawmakers who make it harder to vote, issuing significant decisions that gutted the Voting Rights Act while also giving the green light to aggressive voter purging and extreme partisan redistricting.
Civil rights advocates have described it as the greatest effort to restrict the vote since the Jim Crow era.
“The coordinated onslaught of voter suppression bills is not the norm,” Stacey Abrams, the former Georgia gubernatorial candidate widely credited with helping flip the state, told the Guardian. “What is so notable about this moment, and so disconcerting, is that they are not hiding. There is no attempt to pretend that the intention is not to restrict votes.”
“They are responding to the big lie, to the disproven, discredited, the blood-spilled lie of voter fraud,” she added. “They are responding by conforming to a lie and cloaking it in this mask that this is somehow ethical, that this is somehow about protecting, when it is about restricting and suppressing.”
In Washington, Democrats are trying to counter the anti-democratic tide by pushing legislation that would amount to the largest expansion of voting rights since. It is a “once in a generation” moment – a tipping point for America. The result of that fight will determine whether or not the guardrails of American’s democracy hold or whether they come off entirely.
‘This is Jim Crow 2.0’
Georgia has emerged as the center of this battle over American democracy. Joe Biden won the state in November by around 12,000 votes after a record number of people cast their ballots through the mail, and Trump’s efforts to overturn the election by claiming fraud and squeezing local election officials ultimately proved unsuccessful.
But Republicans in the state legislature are capitalizing on the uncertainty driven by Trump’s false allegations and using it to justify aggressive new restrictions on the right to vote.
One measure would allow for any citizen to bring unlimited challenges against another voter’s qualification, a procedure that has been used to target Black voters in the past in the state. And even though there was no evidence of absentee ballot fraud, Republicans have lined up behind a proposal that would impose additional ID document requirements on voters who cast a mail-in ballot, creating a new hurdle for the poor, minorities and the elderly who face significant challenges in obtaining ID.
Another provision even bans providing food or water to people standing in line to vote after voters, especially in Black neighborhoods in Atlanta, spent hours waiting to cast a ballot last year.
“We’re in this hamster wheel of doing the work to register to vote. People exercise their vote, particularly Black voters, and then they’re punished for exercising that vote,” Brown said. “When Black people exercise our right to vote, there is some kind of punitive measure that is inflicted upon our community.
“If the bills pass, Georgia’s going to send a message loud and clear that they don’t believe in democracy. That this is a state that’s still rooted in its racist, anti-democratic past,” she added.
Amid strong pressure from civil rights groups, Republicans in the state have backed away in recent days from some of their most extreme proposals – cutting Sunday early voting in the state as well as requiring voters to give an excuse to vote by mail. Both measures would have disproportionately affected Black voters, according to a Brennan Center analysis.
Still, the proposals that remain in the bill would significantly harm Black voters, said Lauren Groh-Wargo, the chief executive of Fair Fight Action, the voting rights group Abrams founded.
“This is Jim Crow 2.0. Those who think that’s hyperbolic need to read this bill,” she said. “This is not some sort of moderate consensus because weekend voting is back on the table.”
Outside Georgia, Republicans are pushing equally aggressive proposals.
In Arizona, Republicans are advancing an effort to essentially do away with a policy that allows voters to permanently sign up to automatically receive a mail-in ballot. In Florida, Republicans want to ban absentee ballot drop boxes. Texas is entertaining a suite of proposals to make it harder to vote. In Iowa, a state Trump won handily in 2020, Republicans recently enacted a law requiring the polls to close an hour earlier and shortening the early voting period by nine days, from 29 days to 20.
Many of the voting policies being rolled back have been in place for years and were relatively uncontroversial, said Myrna Pérez, director of the voting rights and democracy program at the Brennan Center for Justice, which closely tracks voting restrictions in state legislatures. But after an election in which minority voters started to employ them as Republicans long had, access has come under attack.
“It was only until communities of color started closing the gap between who was using them that all of a sudden they become political,” Pérez said.
A conservative judiciary
Many of the measures that ultimately pass will be challenged by voting rights groups in state and federal courts. But those challenges are likely to meet skepticism from a conservative judiciary, molded by Trump, and a US supreme court that appears unwilling to stop lawmakers who make it harder to vote. During the 2020 election, federal appeals courts and the supreme court turned away numerous challenges to expand voting access.
The supreme court’s anti-voter posture has become increasingly clear in recent years. In a landmark 2013 case, Shelby County v Holder, the court struck down a provision in the 1965 Voting Rights Act that required places with a history of voting discrimination to submit voting changes to the justice department before they went into effect.
“Things have changed dramatically” since 1965, Chief Justice John Roberts wrote for the majority. It meant that states like Arizona, Georgia and Texas – all states considering significant voting restrictions now – are no longer required to submit voting changes to the federal government for pre-clearance before they go into effect.
The supreme court’s hostility to voting matters has only grown since then. In 2018, the court said Ohio could aggressively remove people from the state’s voter rolls, opening the door for other states to pursue similar policies. The court could go even further this year – it is poised to weaken a key provision of the Voting Rights Act that is one of the most powerful tools groups have to challenge discriminatory laws.
“They have made it harder for plaintiffs to establish that voting laws are illegal when they result in greater burdens on voters of color,” said Leah Litman, a law professor at the University of Michigan. “It has largely made it more difficult across the board, through any medium, to address these state voting laws.”
Targeting communities of color
In a true democratic system, one of the strongest checks on the wave of voting restrictions advancing through state legislatures would be voters themselves, who can use the power of the ballot to foment political change. But this year, Republicans will have the power to redraw the blueprints of the electoral system itself in their favor.
The US constitution mandates that state lawmakers redraw electoral districts every 10 years. The process requires politicians to decide which voters belong in which district. Politicians can manipulate it by packing their own voters into certain districts and cracking support for their opponent by scattering their voters across the state.
Republicans will wield enormous influence over this process this year. Despite losing the presidency and the US Senate in 2020, Republicans were successful in retaining power in state legislatures, giving them complete control over drawing 181 congressional districts in 18 states, an advantage they can use to wipe out the Democratic majority in the US House.
A decade ago, Republicans launched a coordinated effort, Project Redmap, to win control of state legislatures. Their aim was to take control of the process of redrawing district lines, which the US constitution mandates state legislatures must undertake once per decade.
The Republican plan paid off tremendously. In 2011, they used new majorities in state legislative cycles to draw favorable maps in swing states like Michigan, Wisconsin, Pennsylvania and North Carolina. Those maps ensure that Republicans maintained significant majorities in those states, no matter what happened in regular elections.
While both Democrats and Republicans have engaged in the practice over the years, the Republican effort in 2011 took it to a new level. David Daley, a journalist who extensively chronicled Redmap, has described it as “the most audacious political heist of modern times”.
Now, the supreme court has made it nearly impossible to legally challenge the tactic in federal court.
In one recent case, the court said Texas lawmakers were entitled to “presumption of legislative good faith” when it upheld electoral maps a lower court said were discriminatory.
And in 2019, the justices said federal courts could not do anything to stop severe partisan redistricting – known as gerrymandering – even when lawmakers openly admit they are manipulating district lines for partisan gain. The decision essentially allows lawmakers to slice up voters into different districts to suit their own interests.
The practice has “debased” and “dishonored” American democracy, Justice Elena Kagan, wrote in a searing dissenting opinion to the 2019 case. “Left unchecked”, she wrote, such partisan gerrymandering “may irreparably damage our system of government”.
When Republicans draw new maps later this year, they will reap the benefits of an unchecked system.
This time around, Republicans will also have more advanced technology and data, allowing them to choose maps from thousands of options with detailed data about voters, said Michael Li, a redistricting expert at the Brennan Center. Because of delays with the 2020 census, which produces the data used for redistricting, states are going to undertake the process much later than usual, a move that may allow them to provide little transparency into the mapmaking process.
The delays will also provide an even shorter window between the redistricting process and the start of the election cycle, giving voting rights groups little time to bring challenges to gerrymandered maps.
States will not have to get their maps reviewed for racial discrimination before they go into effect.
“Last decade Republicans tried to pack Black voters into districts in the south and claim that they were trying to do it because of the [Voting Rights Act]. Now there’s an open route for [Republicans] to say, ‘well we’re putting Black voters into districts because they’re Democrats.’ And the supreme court has said that’s OK,” Li said.
“The reality is that people of color will bear the brunt there because you really can’t do a partisan gerrymander in the south without targeting communities of color,” he added.
‘An opportunity for us to get it right’
Amid this attack on voting rights, Democrats and voting rights groups see a glimmer of hope in Washington. Earlier this month, Democrats passed a bill that would implement sweeping changes to America’s voting system, requiring states to offer early voting as well as same-day, online and automatic voter registration, among other measures. It would also establish independent commissions to handle redistricting.
A separate bill pending in the House would establish a new formula to require certain states with recent voting rights violations to again pre-clear their voting changes with the federal government.
Making both bills the law will require getting rid of a rule, often referred to as the filibuster, that requires 60 votes to advance legislation. Even though Democrats control the US Senate, there isn’t yet enough support for getting rid of the filibuster. Some moderate Democrats have staunchly resisted the idea, saying it will empower the majority party to ram bills through without achieving any kind of consensus.
But the efforts to restrict voting rights have only emboldened Democrats calling to scrap the rule. Not doing so, they say, would have perilous consequences.
Abrams said the measures were essential so that the US does not suffer another 100 years of Jim Crow.
“Rather than 100 years of stasis and paralysis and ignominy, this is an opportunity for us to get it right,” she said.