The most explosive battle in decades over access to the voting booth will reach a new crescendo this week, as Republican-controlled states advance an array of measures to restrict the ballot, and the U.S. House of Representatives votes on the federal legislation that represents Democrats’ best chance to stop them.
It’s no exaggeration to say that future Americans could view the resolution of this struggle as a turning point in the history of U.S. democracy. The outcome could not only shape the balance of power between the parties, but determine whether that democracy grows more inclusive or exclusionary. To many civil-rights advocates and democracy scholars I’ve spoken with, this new wave of state-level bills constitutes the greatest assault on Americans’ right to vote since the Jim Crow era’s barriers to the ballot.
“This is a huge moment,” Derrick Johnson, the president and CEO of the NAACP, told me. “This harkens to pre-segregation times in the South, and it goes to the core question of how we define citizenship and whether or not all citizens actually will have access to fully engage and participate.”
In Georgia, Texas, Arizona, Iowa, and Montana, Republican governors and legislators are moving forward bills that would reduce access to voting by mail, limit early voting, ban ballot drop boxes, inhibit voter-registration drives, and toughen identification requirements—measures inspired by the same discredited claims of election fraud that Donald Trump pushed after his 2020 loss. Earlier this week, the Republican-controlled House of Representatives in Georgia, for instance, passed a sweeping bill that would do almost all of those things.
The Supreme Court’s 6–3 conservative majority is unlikely to block many, or perhaps any, of these state laws. As a result, Democrats may have a single realistic opportunity to resist not only these proposals, but also GOP plans to institute severe partisan congressional gerrymanders in many of the same states. That opportunity: using Democrats’ unified control of Washington to establish national election standards—by passing the omnibus election-reform bill known as H.R. 1, which is scheduled for a House vote today, and the new Voting Rights Act, which is expected to come to the floor later this year.
Democrats may have only a brief window in which to block these state-level GOP maneuvers. Typically, the president’s party loses House and Senate seats in the first midterm election after his victory. Democrats will face even worse odds if Republicans succeed in imposing restrictive voting laws or gerrymandering districts in the GOP’s favor across a host of red states.
If Democrats lose their slim majority in either congressional chamber next year, they will lose their ability to pass voting-rights reform. After that, the party could face a debilitating dynamic: Republicans could use their state-level power to continue limiting ballot access, which would make regaining control of the House or the Senate more difficult for Democrats—and thus prevent them from passing future national voting rules that override the exclusionary state laws.
“There’s an increasing appreciation,” Democratic Representative John Sarbanes of Maryland, H.R. 1’s chief sponsor, told me, that “if we can’t get these changes in place in time for the 2022 midterm election, the efforts that Republicans are taking at the state level to lock in this voter-suppression regime” and maximize their advantage via partisan gerrymanders “will reshape the environment in a way that makes it impossible to get this, or frankly many other things, done.”
The outcome in the House for both H.R. 1 and a new VRA isn’t in much doubt. No Democrat voted against either bill when the chamber first passed them in 2019. This year, every House Democrat has already endorsed H.R. 1, ensuring its passage today. Although some Senate observers have questioned whether the moderate Democrat Joe Manchin, of West Virginia, will support H.R. 1’s Senate equivalent, most election-reform advocates I’ve spoken with expect that, in the end, Manchin and every other Senate Democrat will back both voting-rights bills, as they did in the previous Congress.
How far the party will go to make them law remains in doubt, however. Senate Republicans are likely to try to kill these bills with a filibuster. Senator Jeff Merkley of Oregon, the principal sponsor of H.R. 1’s Senate analogue, has been urging his colleagues to consider ending the filibuster for these bills alone, even if they are unwilling to end it for all legislation. But so far, at least two Democrats remain resistant to curtailing the filibuster in any way: Manchin and Senator Kyrsten Sinema of Arizona.
One White House official, who asked not to be identified while discussing internal strategy, told me that “the president is committed to defending the voting rights of all Americans, and keenly aware of the ongoing threats to those rights.” But several activists and scholars who support the election-reform bills told me they fear that neither the Biden administration nor Senate Democrats are sufficiently worried about the threat to small-d democracy coalescing in the red states. They are especially dumbfounded that Manchin and Sinema—and maybe others—would protect the filibuster on the grounds of encouraging bipartisan cooperation when Senate Republicans would be using it to shield red-state actions meant to entrench GOP control. “What’s the point of being a Democrat if you are just going to let Republicans systematically tilt the playing field so that Democrats can’t win?” Lee Drutman, a senior fellow at the centrist think tank New America, told me. “At that point, you should just be a Republican.”
Although Democrats first introduced H.R. 1 and the new VRA long before the 2020 campaign, everything that has happened since Election Day has underscored the stakes in this struggle. The GOP’s state-level offensive amounts to an extension of the assault Trump mounted in the courts, in state legislatures, and ultimately through the attack that he inspired against the Capitol. If nothing else, the GOP’s boldness can leave Democrats with little doubt about what they can expect in the years ahead if they do not establish nationwide election standards. “This is a very brazen effort by lawmakers across the country to enact provisions that make it harder for Americans to vote,” Eliza Sweren-Becker, a counsel at the Brennan Center for Justice who is tracking the GOP’s state-level measures, told me. “There is no subtlety and no attempt to obfuscate what is going on here.”
In its latest tally, the Brennan Center counts 253 separate voter-suppression proposals pending in 43 states. That’s significantly more than the number of bills it tracked after the 2010 election—180 bills, in 41 states—when significant GOP gains in the states triggered a similar wave of laws.
Some advocates remain optimistic that the most extreme proposals (such as repealing some states’ on-demand absentee balloting) will be thwarted by public resistance; many Americans are now accustomed to the expanded voting options that many states have offered amid the pandemic. Such measures can also backfire by angering voters, who then become more determined to cast their ballot. But there’s no question that election law can heavily influence how easy or difficult participation is for voters—particularly low-income, young, and minority voters less attached to the political system. Among the laws under consideration in the states are these:
- On a pure party-line vote, Iowa’s legislature has approved a bill that cuts the number of early-voting days, reduces by one hour how long polls are open on Election Day, and requires all absentee ballots to be received by the time the polls close on Election Day. (The current rule allows all mail-in ballots to be counted so long as they are postmarked within one day of the election.)
- In Georgia, the state Senate approved legislation last month imposing new voter-ID requirements for requesting an absentee ballot, a step that critics say will disproportionately burden low-income voters. A state Senate committee voted Friday to end the policy that automatically registers voters when they obtain a driver’s license or access other government services, and to eliminate the on-demand absentee-ballot system the state has employed since 2005. Earlier this week, the state House approved a bill that would mandate the absentee-ballot voter-ID requirement, curtail the window during which voters can request an absentee ballot and the availability of ballot drop boxes, and retrench early voting on weekends, when Black churches traditionally hold “souls to the polls” mobilizations. Taken together, the state Democratic Party recently calculated, these provisions and others under consideration would outlaw the manner in which more than 2.2 million Georgians cast their ballots in 2020.
- In Arizona, the Republican-controlled legislature is advancing bills that would purge as many as 200,000 people from the roll of voters who automatically receive absentee ballots; reduce the number of early-voting days; impose tougher ID requirements for absentee ballots; require that absentee ballots be mailed by the Thursday before the election and received by the time the polls close on Election Day; and create new reporting requirements for groups conducting voter-registration drives. The purge alone could disenfranchise as many as 50,000 of the state’s Latino voters, Randy Perez, the democracy director at LUCHA, a community-organizing group, told me. “That could be 7 percent of our state’s Latino voters gone in a flash.”
The GOP is on the offensive elsewhere too. Republicans in Montana and New Hampshire are pushing proposals that would make voting more difficult for college students. In Florida, state House Republicans are moving a bill that would require voters to reapply for mail-in ballots more frequently, and Republican Governor Ron DeSantis wants to reduce the availability of drop boxes and create more stringent standards for signature verification on absentee ballots, among other measures. Republican legislators in Texas recently introduced a bill to ban voting at night, after Harris County (which includes Houston) generated huge turnout last year by, in part, holding one session of all-night voting meant to provide access for workers who could not get to the polls at any other time.
In red states, civil-rights and government-reform groups are struggling to combat these restrictions. Courts have uniformly rejected Trump’s illusory claims of fraud, but polls show that the majority of Republican voters believe them—and that’s translated into substantial pressure on GOP legislators to impose new obstacles to voting. “We are getting drowned out,” Perez said. “Every legislator I talk to tells me the same thing: ‘I get thousands of emails a day telling me the election was stolen and I need to fix it.’” Voters, he added, “might be in for a big shock if we can’t stop this.”
Federal courts are unlikely to step in: Although the Supreme Court refused to intervene in the far-fetched efforts of Trump and his allies to overturn the 2020 election, under Chief Justice John Roberts, the conservative Court majority has consistently refused to block state limits on voting access or to prevent partisan gerrymanders. Critics argue that in the Court’s 2013 Shelby County decision, Roberts fired the starting gun for the current barrage of voter-suppression measures—by eviscerating the provision of the original VRA that required states with a history of discrimination to receive “preclearance” from the Justice Department for changes in their voting laws.
Assessing this turbulent landscape, Michael McDonald, a political scientist at the University of Florida who specializes in voter turnout, recently concluded: “We are witnessing the greatest roll back of voting rights in this country since the Jim Crow era.”
H.R. 1 would reverse many of the restrictive policies advancing in red states. As I wrote recently, the bill would require all states to provide online, automatic, and same-day registration; ensure at least 15 days of in-person early voting; provide all voters with access to no-excuse, postage-free absentee ballots; and offer drop boxes where they can return those ballots. It would also end gerrymandering by requiring every state to create independent commissions for congressional redistricting and by defining national criteria to govern the process.
Against the backdrop of the red-state voting offensive, the fate of H.R. 1 looks like a genuine inflection point. If Democrats can’t persuade Manchin, Sinema, and any other filibuster proponents to kill the parliamentary tool, Senate Republicans will be able to shield their state-level allies from federal interference. And that could produce a widening divergence between elections in red and blue states—as well as a lasting disadvantage for Democrats in the battle for control of Congress. Such a chasm will fuel “competing narratives that are inherently corrosive and destructive,” Sarbanes told me. “The more you have this bifurcated system of how elections are conducted in this country, the more oxygen you are going to give to some of the conspiracy theories that come from the other side.”
Yet even that equilibrium—with blue states expanding the franchise and red states restricting it—might not be stable. First, voter-suppression laws and gerrymanders in red states could help Republicans regain one or both congressional chambers in 2022. Then, efforts to restrict the vote could help Republicans recapture the presidency in 2024. Today, Democratic governors in key swing states—Michigan, Wisconsin, and Pennsylvania—can block any restrictive laws, but if the party loses any of those governorships in 2022, it’ll be virtually powerless to stop new voter-suppression efforts from the Republican-controlled state legislatures.
In that nightmare scenario for Democrats, new laws across the Rust Belt, combined with what’s already happening in Arizona and Georgia, would put enough states at risk to seriously endanger Democratic hopes of holding the White House in 2024. If Republicans win unified control of the White House and Congress that year, they could try to set national voting standards that impose the red-state voting rules on blue states. Republican Senator Rick Scott of Florida, for instance, has already proposed legislation that would bar all states from offering automatic voter registration and using drop boxes, and would require them to adopt stiff voter-ID rules. In his speech to CPAC on Sunday, Trump also called for establishing a national voter-ID requirement, as well as rules banning early voting and most mail balloting.
More and more Democrats, Sarbanes said, are coming to recognize that “this isn’t just about trying to do something now that we can do later. This is about doing something now that we may not get the chance to do again for another 50 years.” Democrats face an unforgiving equation: a fleeting window in which to act, and potentially lasting consequences if they don’t. “If you look at all the stakes that are involved,” Sarbanes continued, “the notion that you would miss this opportunity becomes incomprehensible.”