“How Democrats Can Reverse Years of Voter Suppression. It doesn’t require packing the Supreme Court.”

I have written this piece for Slate. It begins:

Faced with the latest flurry of hardball Republican tactics on voting issues this election cycle, Democrats are grappling with the reality of an opposition that now seems determined to cement long-term minority rule. In order to combat this dynamic, progressives need a plan of their own for the next time they control both houses of Congress and the presidency. The single best step that Democrats could take under a future unified control would be to use the “nuclear option” to expand voting rights. This would let Democrats, by a simple majority vote, enact wide-ranging voting reform, from restoring a key part of the Voting Rights Act, to automatic voter registration, to statehood for D.C.

This progressive version of electoral hardball—which would merely mean killing the filibuster for voting rights legislation—is an appropriate response to the hardball tactics Republicans have used to manipulate the U.S. political system in recent years. Consider the most prominent example of recent Republican hardball: the Republican Senate in 2016 denying Obama-nominated Judge Merrick Garland a hearing for a Supreme Court spot after the death of Justice Antonin Scalia. In 2017, meanwhile, the Republican Senate invoked the so-called nuclear option, which lowered from 60 votes to a simple majority the number of senators necessary to confirm a Supreme Court nominee, leading to the confirmations of Justices Neil Gorsuch and, more recently, Brett Kavanaugh….

Republican Party. Sargent mines the political science and legal literature on norm devolution and constitutional hardball to urge Democrats to think carefully about the kind of change they might undertake should they retake the levers of power in 2021 or beyond. Drawing on the work of professors Joseph Fishkin and David Pozen, Sargent cogently argues that “Democrats will have to do whatever they can to, in effect, take the weaponry out of GOP hands (in effect, out of both parties’ hands) whenever possible.”

Sargent is on the right track, and the key is finding the right balance between restoring political equality and fomenting an all-out political war. Rather than begin with a radical step like court packing, Democrats could, by simple majority, vote to adopt a procedure whereby all future voting rights measures need only a simple majority to pass. Not only would killing of the filibuster here be the exact same move that Republicans did to allow for the majority votes on Kavanaugh and Gorsuch, Democrats could correctly claim that such a move will further the values of equality embedded in the 14th and 15th amendments of the Constitution.

• Legislation restoring the preclearance provisions of the Voting Rights Act, which the Supreme Court killed in 2013’s Shelby County v. Holder, using a new coverage formula to satisfy the court’s standard in that case.

• Legislation passed under Congress’s Article I powers to require states to establish independent redistricting commissions, using neutral standards, for the drawing of congressional district lines.

• Legislation admitting Puerto Rico and D.C. as states in the union, creating four more Senate seats.

• Legislation giving greater voting rights to American citizens living in U.S. territories.

• Legislation establishing automatic voter registration for congressional elections, complete with a national registration system that would both ensure that eligible people are registered to vote and that ineligible people are kept off the rolls.

• Legislation establishing generous public financing for elections (perhaps through the use of campaign finance vouchers), barring foreign interference in U.S.
elections, requiring greater transparency in political giving, and limiting contributions to independent groups like super PACs….

 

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