Democrats — and democracy — won what is likely to be a very temporary victory in Texas this past weekend.
On Sunday evening, Texas Republicans expected to pass Senate Bill 7, which contains several provisions making it harder to cast a ballot in Texas. But Democrats took advantage of two procedural constraints to temporarily block the bill.
The legislative session expired at midnight, placing a hard deadline on all bills that Texas lawmakers hoped to enact, and the state House must have two-thirds of its members present to conduct business. So Democrats ran out the clock by abandoning the House chamber before Republicans could call a vote on the bill.
The previous day, however, something even more surprising happened. Though Republicans were united behind passing some kind of voter suppression bill, the state House and state Senate versions of the bill were quite different. On Saturday, a conference committee made up of members of both houses released the version of the bill they expected to pass on Sunday — and it stripped out many of the state Senate bill’s most aggressive provisions.
The Senate’s version of the bill, for example, would have strictly regulated where Texas’s largest counties — the ones that include big cities dominated by Democrats — are allowed to locate polling places. Had this provision passed, it was expected to shut down many polling places in Democratic areas with a large share of minority voters. But this provision was stripped during the conference committee.
Similarly, the conference committee dropped a vague provision that could have removed voters from the rolls after they are ”otherwise determined to be ineligible to vote” — it wasn’t entirely clear how this determination would have been made under the deleted provision.
So has the fight to protect the right to vote been won in Texas? Hardly. Republican Gov. Greg Abbott is expected to call a special session to ensure that new voter restrictions are passed. It’s also possible that some of the deleted provisions will be revived in this session.
But the fact that these provisions did not make it out of the conference committee suggests that there is some internal disagreement within the Texas GOP about how aggressively it plans to restrict the franchise. And this disagreement might offer small-d democrats a path forward when the special session happens.
Broadly speaking, there are two kinds of voter suppression laws. Many provisions currently being pushed by Republican state lawmakers make it harder to cast a ballot in a certain way — such as by mailing in the ballot or placing it in a drop box. Or they place unnecessary procedural obstacles in the way of voters. These provisions often serve no purpose other than to make it more difficult to vote, but they also are not insurmountable obstacles.
Other provisions are more virulent. They might disqualify voters for no valid reason. Or allow partisan officials to refuse to certify an election, even if there are no legitimate questions about who won. Or make it so difficult for some voters, who are likely to vote for the party that is out of power, to cast their ballot that it’s nigh impossible for the incumbent party to lose.
These are the sorts of provisions that are most likely to rig an election. Distinguishing between the two can be helpful as voting rights advocates have to choose their battles on multiple fronts.
Not all voting restrictions present the same threat
Last week, the Atlantic’s Ronald Brownstein reported that the Biden White House is surprisingly sanguine about the latest round of voter suppression bills making their way through various state legislatures. “Although White House officials consider the laws offensive from a civil-rights perspective,” Brownstein wrote, “they do not think most of those laws will advantage Republicans in the 2022 and 2024 elections as much as many liberal activists fear.”
He also quoted an unnamed senior White House official, who summarized the case for optimism in the face of voter suppression. “I think our feeling is, show us what the rules are and we will figure out a way to educate our voters and make sure they understand how they can vote and we will get them out to vote,” this official said.
This feeling is not unique to the Biden administration. Last March, for example, MIT political scientist Charles Stewart offered me a similarly hopeful picture of state lawmakers’ ability to skew elections by changing how they are administered.
“There is very little that politicians can do to alter election administration in such a way that it would have a permanent, obvious effect on turnout or the composition of the electorate,” Stewart told me in an email, adding that “the most important factor influencing turnout, both its level and composition, are the efforts by the campaigns to turn out voters.”
Take, for example, restrictions on absentee voting. In the lead-up to the 2020 election, then-President Donald Trump railed often against voting by mail, often spouting falsehoods about voter fraud. And Trump’s voters appear to have taken his false rhetoric to heart — Democrats were much more likely to cast their votes by mail in 2020 than Republicans.
Georgia Republicans responded to this absentee voting gap by enacting several restrictions on voting by mail, and Texas appears likely to add new limits to its already-restrictive laws governing absentee ballots.
But it’s far from clear that these new restrictions will actually benefit Republicans in future elections. As Democratic data wizard David Shor told me in March, “if you look at the seven states that went from having very little vote by mail to having massive amounts (AL/CT/MO/MS/NJ/NY/PA), they trended about 0.2 percent toward Trump relative to the other 43 states.” It does not appear that higher levels of absentee voting among Democrats led to higher overall turnout among Democrats, at least relative to their Republican neighbors.
Other studies suggest that Black voters mobilize in response to attacks on the right to vote, potentially neutralizing — or, at least, mitigating — the impact of those attacks.
New working paper finds evidence of ”the resilience of Black turnout,” despite Supreme Court decision that limited voting rights. Results are consistent with other studies finding Black voters mobilize in face of ”perceived threats to the franchise.” https://t.co/mZny9433Gd pic.twitter.com/Q6xqiHXS7U— Omar Wasow (@owasow) March 9, 2021
But not every provision of the latest round of voter suppression bills can be overcome either by vigilant voters or by smart campaigns.
Georgia’s new law, for example, permits state-level Republican officials to take over local election boards in Democratic strongholds such as Atlanta. That matters because these local boards can potentially close polling places, disqualify voters, or even refuse to certify an election result. Voters who do everything right might nonetheless have their ballots disqualified.
Similarly, a provision of the Texas bill that survived the conference committee requires county election officials to “develop a remediation plan” to conduct “voter roll maintenance” if the “county has a number of registered voters equal to or greater than the number of people eligible to register to vote in the county.” Counties that do not comply with this provision may face fines of $1,000 a day.
There’s nothing nefarious about a county’s list of registered voters exceeding the number of eligible voters in that county — people move and people die, and they typically do not notify election officials when they do so. But this provision of the Texas bill risks purging voters from the election rolls who complied with the law governing voter registration, and who have every right to vote. As my colleague Zack Beauchamp wrote about the provision, “voting rights activists worry that this is a backdoor effort to revive a 2019 voter purge struck down in court, an effort that tried to kick tens of thousands of recently naturalized voters off the rolls by using outdated citizenship status for them.”
State lawmakers in 2021, moreover, haven’t even begun to consider the most common kind of law that seeks to make the results of an election impervious to the will of the voters: gerrymandering. The Census Bureau expects to provide states with the data they need to draw new congressional and state legislative districts this fall. Once that data is available, states like Georgia and Texas are likely to draw maps that seek to entrench Republican rule as much as possible. (Democrats also engage in gerrymandering, but blue states are more likely to use independent commissions to draw district lines, or to have other safeguards that limit partisan redistricting.)
Gerrymanders can potentially make the fight to control a legislative body all but impervious to the will of the voters. In 2018, for example, Democratic candidates for the Wisconsin state assembly received 54 percent of the popular vote, but Republicans won nearly two-thirds of the seats.
So why is it useful to distinguish between two kinds of anti-democratic laws?
To be clear, the point of drawing a distinction between voter suppression tactics that can be overcome through campaigning and voter education and the sort that can only be overcome through legal means, such as a federal voting rights statute, isn’t to diminish outrage over the first kind of law. An attack on democracy is still an attack on democracy, even if it is ineffective.
Rather, the point is that defenders of democracy should be especially vigilant in seeking to defeat the second kind of law using whatever means are available to them.
For the moment, federal voting rights legislation is effectively being blocked by Democratic senators such as Joe Manchin (WV) and Kyrsten Sinema (AZ), who insist on preserving a filibuster rule that allows Republicans to veto nearly all federal bills. Should these senators relent — or should Democrats gain seats in the Senate despite the GOP’s anti-democratic tactics — congressional Democrats will still face a difficult intraparty negotiation over how to address voting rights.
Yes, the House did pass the For the People Act, a comprehensive voting rights bill, earlier this year. But it’s relatively easy to pass an ambitious bill through one house of Congress when it has little chance of becoming law. It’s much harder to convince a majority of the legislature to pass the same bill when the lawmakers will have to live with whatever new law they enact. And, of course, if any bill has a shot of passing the current Congress, it must win the approval of conservative Democrats such as Manchin and Sinema — the former of whom has signaled that he would prefer a different approach to the one taken by the For the People Act.
If Democrats are able to pass a less ambitious voting rights bill than the For the People Act, they would be wise to identify which state-level voter suppression tactics can be overcome through campaigning and voter education, and which ones are likely to skew elections unless Congress intervenes — and to focus on defeating the latter sort of tactics.
Similarly, several major companies denounced Georgia’s voter suppression law, and more than 100 corporate executives reportedly met to discuss how to defeat similar attacks on democracy. These companies are likely to have more leverage over Republican state lawmakers than, say, Democratic state lawmakers or voting rights groups. And, while they may not have enough leverage to kill a voter suppression law outright, they may be able to pressure Republican lawmakers into removing some of the most aggressive provisions.
Finally, Democratic lawyers have limited resources to challenge anti-democratic laws. And judges who support voting rights may wish to weaken such laws but may also be cautious about handing down a pro-democracy decision that would be reversed by higher courts — including a Supreme Court that is quite skeptical of voting rights.
But lower courts can still play an important role in protecting voting rights — in the past several years, for example, state and federal judges in states like Pennsylvania, Virginia, and North Carolina weakened or outright dismantled gerrymanders in those states. The Supreme Court is likely to impose new limits on the judiciary’s power to protect democracy, but sufficiently cautious judges may be able to neutralize some of the most aggressive attacks on the franchise.
The Republican Party wields a tremendous amount of power in the United States, in the Senate, in state legislatures, and especially in the judiciary. It is likely that many of the GOP’s attempts to restrict the franchise will endure.
But that doesn’t mean that all of these laws will survive intact. Both the Democratic Party and small-d democrats have limited ability to challenge such laws. But if they are fortunate, they may be able to eliminate at least some of the worst provisions.