It’s Fourth of July weekend, which is as good a time as any to consider the state of our democracy. In brief, it’s not good. And if Democratic refuseniks on Senate filibuster reform — I mean you, Joe Manchin and Kyrsten Sinema — don’t come around to that fact, things may yet get a lot worse.
As of now, as we celebrate the 245th anniversary of the signing of the Declaration of Independence, many of the truths Jefferson cited in our nation’s founding document no longer seem to be so self-evident, if, in fact, they ever were.
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It’s fair to say, and I don’t mean to be alarmist as you fire up the backyard grill, that American democracy is under attack. It’s as obvious as the Jan. 6 insurrection at the Capitol or the Senate vote to reject a nonpartisan Jan. 6 investigative commission, or those red states that have considered and, in many cases, passed discriminatory legislation to limit/suppress the vote, or the Supreme Court which has just validated a state’s right to, yes, limit/suppress the vote by further eviscerating the monumental 1965 Voting Rights Act.
And while it’s fair and just to blame Donald Trump and his never-ending, phony-baloney insistence that the 2020 election was rigged for much of this, the blame doesn’t end there. What is self-evident is that a gutless Congress, an activist Supreme Court, the propagandizing right-wing media and the majority of Republicans in America who believe the Big Lie — or at least who tell pollsters they do — have brought us to what The Atlantic’s Ron Brownstein calls a “hinge point” in the American small-d democratic project.
You could see that hinge swinging wildly the other day when Lauren Boebert and some of the other House crazies met Trump at the border. Trump gave a shout out to Boebert, saying that you should be careful entering Boebert’s house uninvited because “guns will be blazing.” And Boebert offered one back to Trump, who was again lamenting the so-called rigged election, telling the former president that “you won.” Boebert and the other crazies weren’t just spending time with Trump, by the way. CNN reported they were also hanging out with a Capitol riot supporter.
Meanwhile, back in Washington, there were two anti-democratic Supreme Court rulings on July 1, one worse than the other. But it’s the one defending Arizona’s new voting laws that grabbed the headlines. It was a ruling that will give courage to any red-led state that hasn’t yet passed discriminatory voting restriction laws to move forward. The other decision overturned a California law on dark money. Washington Post columnist E.J. Dionne called it Oligarchy Day at the Supreme Court.
In a 6-3 decision on Brnovich v. DNC, written by Justice Samuel Alito, the court ruled in favor of two Arizona laws. One required election officials to toss ballots if they were cast at the wrong precinct. As Justice Elena Kagan pointed out in her dissent, Arizona is in the national forefront on tossing entire ballots cast in the wrong precinct. Kagan noted that votes in statewide and national elections aren’t affected by precinct. She cited the 2012 election, in which 35,000 ballots nationwide were discarded for getting the precinct wrong. More than 10,000 of those were in Arizona.
The other rule is against so-called “ballot harvesting,” in which third parties deliver ballots to the voting place. The law is especially important to many American Indians in Arizona who live on reservations and who might be some distance from a voting site.
Alito ruled that such small burdens — small in his view, anyway — can be overlooked if, for instance, the integrity of the ballot is at stake. Alito wrote, “even if the plaintiffs were able to demonstrate a disparate [racial] burden caused by [the Arizona laws], the state’s ‘compelling interest in preserving the integrity of its election procedures’ would suffice to avoid [Voting Rights Act] liability.”
The problem is there is no identifiable fraud that these laws, and all the others spreading like drought-driven wildfire across the country, can cite, no matter how many “fraudits,” like the one in Arizona, with its Cyber Ninjas, are conducted.
Without getting too far in the weeds for us non-constitutional-scholar types, in the 2013 case of Shelby v. Holder, the Supreme Court took apart Section 5 of the Voting Rights Act, which required states with a history of discriminatory voting laws to have any news laws overseen, Chief Justice John Roberts wrote that the law wasn’t needed any more. Of course, Congress didn’t say it wasn’t needed any more. In fact, as late as 2006, the Senate had unanimously reinstated the act. And as soon as Section 5 was lifted, affected states started passing voting restriction laws.
In his ruling, Roberts cited Section 2, saying that would take care of problems that arose. Section 2 bans racial discrimination in election law and process. But it is Section 2 that is now under assault. As Alito points out in his opinion, Section 2 still holds, but how firmly will depend on the next set of rulings and how lower courts interpret this case.
It could also depend on the workings of the U.S. Senate, which has two laws to consider, both of which will be filibustered by Republicans and both of which are near certain to fail. One is the John Lewis Voting Rights Advancement Act, which would basically reinstate much of the 1965 Voting Rights Act. It has one Republican supporter so far. And there’s the For the People Act, which is a huge overhaul in voting law. Manchin has proposed a scaled-back version, which Democrats have reluctantly adopted, but we haven’t heard from any Republican who has.
We’ll see which other state laws are challenged and whether they make it up the chain to the Supreme Court. But the Arizona cases have done sufficient damage to the Voting Rights Act, a law, as Kagan points out, that represents both the best and worst of America. The best, she wrote, because “it marries two great ideals: democracy and racial equality.” The worst, because the law to protect minority voting rights “was — and remains — so necessary.”
She continues: “What is tragic here is that the court has (yet again) rewritten — in order to weaken — a statute that stands as a monument to America’s greatness, and protects against its basest impulses. What is tragic is that the court has damaged a statute designed to bring about the end of discrimination in voting.”
I’m going to guess that Mitch McConnell wasn’t moved by these words. I’m going to hope — and probably against hope — that Joe Manchin was moved to the point of changing his mind on the filibuster. These discriminatory state laws have been passed on straight-party lines in nearly every instance. The U.S. Senate, with the Democrats only barely in control of a 50-50 chamber, must do no less in defense of voting rights. Because if we’ve learned anything on this Independence Day, it’s that the 6-3 conservative court will be of no help.
Mike Littwin has been a columnist for too many years to count. He has covered Dr. J, four presidential inaugurations, six national conventions and countless brain-numbing speeches in the New Hampshire and Iowa snow.