How Democrats botched the fight over voting

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Democrats told Americans over the last year that voter suppression was the biggest threat to democracy, even as it was clear that the far more immediate challenge is the potential for politicians to overturn election results after votes have been counted.

Democrats and Republicans in Congress are now working to pass key reforms that will make election subversion harder. But many people involved in efforts to preserve democracy have grown alarmed over the past year as they watched Democrats tell their supporters that America’s future was at stake if they did not pass two doomed voting rights bills.

A sign at rally outside the Capitol reads: Your vote is your voice. Don't let them silence you.
A demonstrator holds a sign at rally outside the U.S. Capitol on Jan. 19 urging the Senate to pass voting rights legislation. (Tom Williams/CQ-Roll Call, Inc via Getty Images)

“We wasted a year,” said one person who runs an organization helping local election officials across the country. “A lot of us who work in the space every day are baffled by the way these tactics were devised and pursued.”

Now Democratic activists and grassroots supporters are deflated by the failure to pass voting legislation, even as crucial work is ongoing to prepare for and prevent a potential assault on democracy. They fear it will be difficult to rouse voters with a message that, actually, this other thing is the real existential threat.

“All the rhetoric about how important it was to pass those bills so people could vote, and then failing, stands to depress [Democratic] turnout,” said Ben Ginsberg, a veteran Republican election lawyer who in 2020 became a leading voice pushing back on then-President Donald Trump’s election lies. Ginsberg is now leading an effort with Democratic attorney Bob Bauer to help protect local officials who oversee elections from threats and frivolous legal harassment.

Few Democrats are willing to speak publicly or on the record about their party’s shortcomings over the past year, because they do not want to give ammunition to their Republican opponents and because the threats to voting rights are quite real.

The history of racially motivated voter suppression in the United States is horrific, and efforts to restrict the vote have ramped up over the past two decades. Yahoo News has documented cases of intimidation in the Deep South within the last decade.

Former President Donald Trump speaks onstage at a rally.
Former President Donald Trump at a rally in Conroe, Texas, on Jan. 29. (Brandon Bell/Getty Images)

In addition, large portions of the Republican Party are in thrall to Trump, who tried to overturn the last election and continues to argue, falsely, that he was cheated. Many of Trump’s followers appear intent on turning elections into tests of raw power rather than opportunities for voters to pick who leads them.

Experts say the best way to protect American democracy in the near term is to reform the Electoral Count Act of 1887 (ECA), a once obscure law that allows politicians to challenge legitimate elections.

J. Michael Luttig, a former judge and a key voice in conservative legal circles, put the issue bluntly in an op-ed this week.

“The clear and present danger to our democracy now is that former President Donald Trump and his political allies appear prepared to exploit the Electoral Count Act of 1887, the law governing the counting of votes for president and vice president, to seize the presidency in 2024 if Mr. Trump or his anointed candidate is not elected by the American people,” Luttig wrote.

Meanwhile, tensions between nonpartisan experts and Democrats rose to the surface recently when one of the nation’s leading authorities on voting, Rick Hasen, wrote an article criticizing Marc Elias, a prominent Democratic election lawyer, for bashing efforts to reform the ECA.

“Marc could play a much more constructive role here … even if it does not give Marc everything he thinks Democrats want,” wrote Hasen, a professor of law at the University of California, Irvine.

Elias had been saying that ECA reform was “a GOP trap” in early January, when Democrats were in the midst of a desperate push to pressure a few Senate Democrats to support two voting rights bills. Elias said Republicans wanted to offer up support for ECA reform as a way to kill those bills.

Hasen, in late January, said Elias was acting like an “online bully” and asserted that ECA reform was “an opportunity that should not be passed up.”

Attorney Marc Elias.
Attorney Marc Elias in 2016. (David Jolkovski for the Washington Post via Getty Images)

It was the result of frustration that had been building for the better part of the last year.

The great miscalculation

Nonpartisan experts like Hasen agree with Democrats that voting should be easy to do, and agree with Republicans that it should be secure enough to prevent cheating. Experts generally say that attempts in many Republican-controlled state legislatures to make it harder to vote are a solution in search of a problem.

But they also note that Republicans and Democrats have been fighting over voting laws for at least 20 years, and that its emergence as a partisan issue in that time was based largely on flawed strategic assumptions by both parties.

Republicans have passed laws like voter ID, saying they wanted to prevent fraud, while assuming that the fewer voters there are, the more Republicans will win.

Democrats, meanwhile, have pushed to make voting easier, saying they wanted to promote democracy, while assuming that the more voters there are, the more Democrats will win.

A book published in 2002 called “The Emerging Democratic Majority” led many Democrats and Republicans into believing that as the U.S. voting-age population got more diverse, that would favor Democrats. One of the book’s co-authors, Ruy Teixeira, has argued that the lessons of the book were oversimplified and misinterpreted.

The fact is, there’s not much evidence at all that Democrats do better in elections where more voters go to the polls.

“You would think at this point, after the 2020 and 2021 elections, that the facile assumption that higher turnout benefits Democrats would be discarded,” Teixeira wrote last month. “Of course, no myth is stronger in progressive Democratic circles than the magical, wonderworking powers of voter turnout. It’s become a sort of pixie dust that you sprinkle over your political problems that would, somehow, make them disappear.”

And there’s also very little evidence that the laws being passed by Republican state legislatures actually keep many people from voting.

A polling location with individual voter stations.
A polling location in Maine on Election Day 2020. (Brianna Soukup/Staff Photographer via Getty Images)

So while some Republicans may have thought they were giving themselves an advantage by making it harder to vote, they were mistaken. So too were Democrats who worried that Republicans were locking in an unfair edge by passing laws getting rid of drop boxes and early voting.

And while there’s no moral justification for disenfranchising even a single voter, the laws passed by state legislatures in recent years existed on a broad spectrum. A good many of them simply revoked expansions on things like voting by mail, a practice implemented in many places as a response to the COVID-19 pandemic. That may be a needless change, but to compare it to Jim Crow is an insult to history.

The Jim Crow era lasted roughly 100 years. It began as Reconstruction was dismantled in the decades following the Civil War. Black Americans were kept from voting by arbitrary rules, and attempts to challenge these rules were often met with mob violence, vigilante executions and torture.

More than 4,000 lynchings of Black men and women between 1877 and 1950 have been documented by the Equal Justice Initiative. This terrorism was often sanctioned or even organized by local government officials.

Two laws — the Civil Rights Act of 1964 and the Voting Rights Act of 1965 — dismantled the legal architecture of Jim Crow, though it took years to root out racially motivated voter suppression in some parts of the country, especially in the South.

Yet in late March 2021, President Biden blasted a bill pushed by Georgia Republicans in the state Legislature that sought to tighten some voting laws, making it harder in some ways to vote.

The initial draft of the legislation proposed getting rid of in-person early voting on Sundays, which is when many Black churches organize members to go vote, in what is called “Souls to the Polls.”

President Biden speaks at the White House.
President Biden at the White House on Tuesday. (Alex Wong/Getty Images)

In large part because of this very clear racial undertone to the bill, Biden said, “This is Jim Crow in the 21st Century. It must end.”

The Sunday provision was removed, but concerns persisted that the state Legislature might meddle with local election boards in a partisan way, and that closing polling places may have a partisan or racially biased intent.

However, a New York Times report last month found that in rural Lincoln County, a plan to consolidate seven voting precincts into one would place the new site in the only majority-Black precinct.

The real struggle to save democracy

In March of last year, Freedom House, a think tank funded by the U.S. government to study trends in governing around the world, released a report noting that democracy was under siege not just in the U.S. but seemingly everywhere.

Sarah Repucci, the report’s author, told Yahoo News that while there were good elements to the voting rights bills being pushed in Congress by Democrats, there was a danger to making it a partisan effort with no support from the GOP.

“Politicizing democracy itself is one of the most damaging things we can do,” she said.

Hasen made this point as well. “I think there is a great danger when the fight over voting rights is seen solely as a fight of the Democratic Party against the Republican Party. This should not become, or be seen, as a partisan issue,” Hasen said last spring.

Protesters at the Capitol hold signs, one of which reads: Pass the Freedom to Vote Act.
Protesters at the U.S. Capitol on Jan. 20. (Eric Lee/Bloomberg via Getty Images)

It was clear last spring that the voting rights bill would be difficult to pass, if not impossible. Republicans saw it as a partisan bill intended to help Democrats win elections, rather than an effort to protect democracy. Nothing significant changed over the ensuing several months, leading up to the final, dead-on-arrival push for the legislation in January of this year.

But Democrats had spent years banging the drum of voter suppression and voting rights. And after Trump incited an assault on the Capitol on Jan. 6, 2021, Democrats were emboldened.

They took voting rights legislation that had been crafted in 2018 as what’s known as a “messaging bill,” which in Washington jargon means a bill that is not so much meant to become law as to benefit a lawmaker or party politically. They then tried to ram it through the Senate on the mistaken belief they could persuade all 50 Democrats to do away with the legislative filibuster.

The bill was hundreds of pages in length and would have made sweeping changes to U.S. elections. It was never close to a bill that could have attracted the support of 10 Republicans needed to overcome a filibuster.

“I was mystified by the Democratic strategy of letting the core voting rights bill be captured by Democratic political operatives who put an awful lot of stuff in there that is not core voting rights, in my opinion,” Ginsberg told Yahoo News.

“They governed like they had a 65-35 Senate [majority] rather than a 50-50 split, and the price of that is time,” said the person running an organization helping local election officials across the country.

Yet even after Biden began to talk about election subversion side by side with voting rights, he still made comparisons between today and the Jim Crow era.

On Jan. 11, he traveled to Atlanta and gave a speech that was billed as a last-ditch effort to get the voting rights bills over the finish line, even though it was clear the legislation was going nowhere.

“Jim Crow 2.0 is about two insidious things: voter suppression and election subversion. It’s no longer about who gets to vote; it’s about making it harder to vote. It’s about who gets to count the vote and whether your vote counts at all,” Biden said.

President Biden.
Biden speaks at Atlanta University Center Consortium in January. (Kyle Mazza/Anadolu Agency via Getty Images)

Biden also implied that anyone who opposed the voting bills — including lawmakers in his own party — was equivalent to infamous segregationists and white supremacists from American history.

“Do you want to be on the side of Dr. King or George Wallace?” he said. “Do you want to be on the side of John Lewis or Bull Connor? Do you want to be on the side of Abraham Lincoln or Jefferson Davis?”

Sen. Tim Scott of South Carolina, the only Black Republican in the Senate, issued a scathing response to Biden a week later in a speech on the Senate floor.

“As I keep hearing the references to Jim Crow, I ask myself how many Americans understand what Jim Crow was. I am so thankful — thankful — that we are not living in those days,” Scott said.

“As a guy who has voted in the Deep South all my life, as a person who was born in 1965 with a mama who understands racism, discrimination, and ‘separate and not equal’ — with a grandfather who I took to vote and helped him cast his vote, because he was unable to read — to have a conversation in a narrative that is blatantly false is offensive, not just to me or Southern Americans, but offensive to millions of Americans who fought, bled and died for the right to vote,” he said.

Sen. Cory Booker, D-N.J., spoke directly after Scott on the Senate floor. And while he argued vociferously that “in the United States today, it is more difficult for the average African American to vote than the average white American,” the Democrat also acknowledged that “there has been overwrought language on both sides of the political aisle around this issue.”

A Democratic operative at another group working on threats to democracy was more pointed. He said, “Biden has been imprecise in his language in a way that has been unhelpful.”

The operative surmised that one incentive for Biden to overstep was the fact that it has been hard for him to break through and get his message across.

Sen. Cory Booker of New Jersey.
Sen. Cory Booker at a meeting with New Jersey residents on Feb. 11. (Justin Lane/EPA/Bloomberg via Getty Images)

But the end result was that Democrats ended up telling millions of their supporters that the upcoming elections could not be trusted unless their voting rights bills passed, and then those bills did not pass.

“Each party is telling its supporters not to trust our elections unless its favored bills are passed while implicitly persuading its opponents that those bills are illegitimate and dangerous,” wrote Yuval Levin, director of constitutional studies at the American Enterprise Institute.

“The result amounts to an assault on public trust that’s worse than any actual problem with American elections.”