I doubted that Mitch McConnell could do it, but he did. With only a week remaining before Election Day, McConnell crammed through the confirmation of a sixth conservative justice to the U.S. Supreme Court. The people who tally such things reckon that Amy Coney Barrett is the first justice since 1869 to receive not a single vote from the minority party in the Senate.
It was a move of raw power. But it was also motivated by raw desperation.
Polls suggest Republicans are facing defeat in the 2020 races, and probably by big margins. Joe Biden and Donald Trump are neck and neck in Georgia and Texas, nobody’s previous idea of swing states. Republican senators are at risk not only in Maine and Colorado, but also in Iowa and even Kansas.
Republicans are in danger of losing something more than seats and chambers in 2020. They are in danger of losing an entire system of political control.
Measured by elections won and lost, the 2010s were the most conservative decade since the 1920s. At their zenith of power, in 2017–18, Republicans controlled the presidency, the Senate and House, 33 state governorships, and 67 of 99 state assemblies and senates. Not since the administrations of Presidents Calvin Coolidge and Herbert Hoover had the GOP so utterly dominated the machinery of government.
But this time, unlike the days of Coolidge and Hoover, that dominance was highly artificial.
The Republican Party’s signature issue, under the Senate leadership of McConnell and the House leadership of Paul Ryan, was the repeal of the Affordable Care Act—a priority supported by only 35 percent of Americans in 2014 and opposed by 60 percent.
The McConnell-Ryan instinct to cut taxes for corporations and upper-income people was even more unpopular. In 2016, 67 percent of Americans favored some kind of additional tax on millionaires.
The party’s stance on social issues was likewise out of date. By 2011, more Americans favored than opposed same-sex marriage; support for same-sex marriage passed the 50 percent mark in 2014, and surpassed 60 percent in 2017.
Nor were the McConnell-Ryan Republicans really much in the way of vote-winners. Less than 37 percent of those eligible showed up to vote in the big Republican year of 2014, the lowest percentage since 1942. Turnout was especially low in the states where Republicans did best: less than 30 percent in Indiana, Tennessee, and Texas, for example.
Where the Republicans excelled was in converting votes into seats. In 2014, the almost 10 million people of North Carolina cast 2.9 million votes in House elections. Republicans won that vote by a margin of 321,337, or 11 percent. They converted that margin into control of 10 of the state’s 13 House seats.
The secret of Republican success in the 2010s was not votes, but maps and rules. Republicans scored their big comeback election in 2010, a census year. That allowed state-level Republicans to redraw maps in 2011 to favor their own party. That redrawing occurred at a time when a conservative federal judiciary was stepping back from oversight of voting processes.
In 2008, the U.S. Supreme Court let stand an Indiana law requiring photo ID for would-be voters. The decision was written by Justice John Paul Stevens, at the time one of the court’s leading liberals. It was written in hedged, balancing language denying that any big change was being instituted. “On the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes ‘excessively burdensome requirements’ on any class of voters.”
For the new Republican state governments elected in 2010, however, Stevens’s opinion in Crawford v. Marion County Election Board flashed a green light to experiment with ways to discourage voting by unwanted voters. And those experiments accelerated after the Supreme Court struck down important elements of the Voting Rights Act in 2013.
A series of interlocking barriers to voter registration secured the Republican majority in Georgia in the squeaky-tight 2018 election. Georgia purges voters from its rolls if their name on the voting-registration list does not exactly match their name in other state records. Even a missing or excess hyphen can trigger a purge. Purged voters face strict deadlines to correct their status. Brian Kemp, the person in charge of the purge in the 2010s, ran for governor in 2018—and won in an election marked by widespread disqualification.
Trump’s hopes in Florida in 2020 are hugely enhanced by the success of the state’s Republican governor and legislature in neutralizing a 2018 referendum to enfranchise former felons. A post-referendum law requires former felons to pay all fines and fees before voting, which few can do on their own. Even if they possess the means, Florida’s court system makes it difficult for them to learn exactly what they owe.
Success in 2010 allowed Republicans to claim a majority of their seats, even if they outright lost the vote.
In 2018, Democrats won 53 percent of the vote in Wisconsin’s state-assembly races. Thanks to the 2011 gerrymander, the Republicans won 63 of the 99 seats. Democrats likewise won 53 percent of the vote in Wisconsin’s U.S. House elections in 2018. Republicans took five of the eight seats.
In North Carolina, likewise, Democrats won more than half the vote in 2018—but only 55 of the 120 seats in the state House of Representatives.
In a pair of decisions in 2018 and 2019, the Supreme Court shrugged off such gerrymanders for partisan benefit. So long as there is no evidence on the record of intent to debar voters because of race, Chief Justice John Roberts ruled, “partisan gerrymandering claims present political questions beyond the reach of the federal courts.”
The key terms here are evidence and on the record: Given the structure of the American party system, a partisan gerrymander is inevitably a racial gerrymander, not only in result, but by intent. Race is also at issue in the many other ways that Republican state officials in the 2010s deterred voters. As the Bipartisan Policy Center has computed, in 2018, in precincts where 90 percent or more of the voters were white, the average wait time was five minutes, but in those where 90 percent or more of the voters were nonwhite, the average wait was more than 32 minutes.
The obstacles to voting devised and approved after 2013 helped elect Trump in 2016. Nationwide, African American turnout dropped 4.5 percent between 2012 and 2016—and by an astonishing 19 percent in ultra-gerrymandered Wisconsin.
But some margins are too big to gerrymander away. Some blocs of voters wield too much clout to be excluded.
The anti-Trump coalition is not only much larger than the pro-Trump coalition; it includes groups whose voting rights have historically been respected and protected. The innovations of the 2010s were sufficient to convert narrow minorities of votes into big majorities of seats. But as the pro-Trump minority dwindles, the old dark arts no longer suffice. The manipulation of the vote needed to save Trump becomes so extreme as to delegitimize itself.
On October 26, the Supreme Court stopped a federal-court order that extended the counting period for Wisconsin mail-in ballots to November 9, provided that the ballots were postmarked by November 3. Instead, Wisconsin voters who cast a timely ballot that is delivered late will see their votes disqualified. This ruling seemingly contradicted an earlier Court decision not to stay a state-court ruling allowing Pennsylvania voters to vote by mail until November 3. Roberts explained the difference as a matter of deference to state sovereignty. A state court extended the deadline in Pennsylvania; a federal court did so in Wisconsin. But Justice Brett Kavanaugh’s written concurrence in the Wisconsin case emphasized quite different grounds.
Those states want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after Election Day and potentially flip the results of an election. And those states also want to be able to definitively announce the results of the election on Election Night, or as soon as possible thereafter.
Kavanaugh worked on the Bush v. Gore recount of 2000, so he might possibly recall an intensely damaging misstep by Al Gore’s side. On November 15, Gore’s lawyer Mark Herron sent a memo to Democratic recount observers advising them to challenge late-arriving ballots. George W. Bush’s side instantly recognized a lethal political error. Many thousands of these late-arriving ballots were military ballots. Bush’s recount chief, James Baker, said, “Here we have our—these brave young men and women serving us overseas. And the postmark on their ballot is one day late. And you’re going to deny him the right to vote?”
The Gulf War hero Norman Schwarzkopf joined the protest. Gore’s running mate, Joe Lieberman, appeared on Meet the Press on November 20 to argue Gore’s case—and instead repudiated it on live television. “I would give the benefit of the doubt to ballots coming in from military personnel,” Lieberman told Tim Russert. Gore partisans were outraged, but Lieberman understood that the campaign had staked an untenable position. Now, 20 years later, Kavanaugh is staking for Republicans the same untenable position. More than half of U.S. military voters are likely to vote by mail, and the strict deadline position advanced by Kavanaugh in the throes of a pandemic may disenfranchise many serving away from home.
Nor is the margin in 2020 likely to be so close as it was in 2000. The anti-Trump tide of 2020 has risen too high to be contained by the anti-majoritarian dikes built by gerrymandering and voter suppression in the 2010s. And if the math is overwhelming, Democrats will be positioned in the 2020s to do unto Republicans as Republicans did unto them in the 2010s: Redraw the maps and rewrite the rules.
Of course, it’s possible that when Democrats are doing the rewriting, the 6–3 conservative majority on the Supreme Court may suddenly rediscover the merits of federal judicial supervision of elections. But other voting changes may come, too, following a big-enough Democratic win.
Under Trump, the Department of Justice exited the business of voter protection. In four years, the department filed only one voting-rights case, concerning a school-board election in South Dakota. Under a President Biden, the department may remember that the Voting Rights Act of 1965 was only rolled back—not overturned—by the Roberts Court in 2013.
Meanwhile, a Democratic Congress may be inspired to revisit the Voting Rights Act and renew it. The Supreme Court’s ruling in Shelby County v. Holder—the case that struck down part of the Voting Rights Act—did make a valid point. One section of the act at issue in the case presented a formula to identify jurisdictions with histories of voting-rights abuses, which were then required to “preclear” proposed changes with the federal government. By 2013, these histories had fallen heavily out of date. Some of the states and counties required to preclear had long since cleaned up their act. On the other hand, Wisconsin was not required to preclear, even though since 2010 it had become one of the nation’s worst actors on voting rights. A new voting-rights act could respond to practices of today, not of bygone times. But so many new abuses have proliferated since 2013 that some kind of law is clearly needed.
The Constitution forbids states to abridge the right to vote on account of race (the Fifteenth Amendment); sex (the Nineteenth); payment of poll taxes (the Twenty-Fourth); or age, once the person has turned 18 (the Twenty-Sixth).
Yet the Constitution is strangely vague about the right to vote itself. Does it exist at all? The only affirmative voting guarantee in the constitutional text is the language from 1787 that anyone eligible to vote for the “most numerous” branch of each state’s legislature shall also be eligible to vote for the U.S. House of Representatives.
Suppose that Nevada amended its constitution to limit the right to vote to those who—without regard to race, sex, or age—demonstrated a certain level of proficiency at blackjack. Maybe the federal courts would devise some remedy against such a stunt. But they would have a job cut out for them to find that remedy.
So maybe reform begins—maybe an answer to the Barrett confirmation begins—by inscribing a new federal right to vote in the preamble to a new voting-rights act.
That’s not a constitutional amendment, but it would still be law—and law that seems necessary. We are hearing louder and louder voices on the Republican side questioning whether universal voting rights should even theoretically be guaranteed by the American constitutional system. On March 30, Trump told Fox & Friends that if all Americans were allowed to vote, “you’d never have a Republican elected in this country again.” On October 7, Senator Mike Lee of Utah expressed a similar thought more elegantly when he tweeted, “We’re not a democracy.” Lee and his allies quickly elaborated that this statement was intended as a proclamation, not a complaint. The United States, they argued, should not be governed by a limitless popular will.
Yet only eight months before, on February 5, Lee had invoked precisely this limitless popular will as his argument against impeaching Trump for extorting Ukraine to fabricate dirt against a likely political opponent. The speech was titled, “Against Undoing the Vote Taken by the American People.” Lee argued that Trump’s extortion attempt was “exactly the sort of thing the American people elected President Trump to do.” What mattered, Lee argued, was not laws, norms, rules, procedures. What mattered was the will of the people as interpreted by their single elected head of state. “The president,” Lee said, “is the executive branch of government.” All those officials who’d reported blackmail in progress? “They’re not elected by the people.”
The central gambit of Trump-style authoritarianism is to claim legitimacy as a representative of “the people” while selectively disenfranchising and disempowering more and more of those people. The U.S. Constitution in many ways protects minorities against majorities. In the Trump era, we see instead politicians like Lee trying to pretend that minorities are majorities—and to grab the powers that legitimately belong to majorities away from them.
That’s the thing that needs to stop. That’s the thing that needs to change. And if Trump and his allies seem in these final days to act more frantically, more abusively, than usual, perhaps it is because they sense that the change is coming.