Voting rights, Trump's Big Lie, and Republicans' problem with minorities
With extreme gerrymanders locking in, Biden needs to make democracy preservation job one
It's time for political leaders to up their game in preserving democracy.
On Monday, the International Institute for Democracy and Electoral Assistance, an intergovernmental organization that works to promote and advance electoral processes world-wide, issued the latest warning about the condition of democracy in the United States.
Its new report includes this country as among nations suffering from "a severe and deliberate kind of democratic erosion."
Among other things, the report referred to recently approved states' voter registration and voting laws in Republican states that "disproportionately affect minorities in a negative way."
A July statement from 150 scholars made nearly identical points about Republican states' sabotage of nonpartisan vote-count: "The partisan politicization of what has long been trustworthy, non-partisan administration of elections represents a clear and present threat to the future of electoral democracy in the United States. The history of other crisis-ridden democracies tells us this threat cannot be wished away."
The scholars wrote that "midnight is approaching."
And the journalist Anne Appelbaum recently warned that in the battle between authoritarianism and democracy, "the Bad Guys are Winning."
Yet as these warnings proliferate and grow ever more dire, many leaders of the Democratic party, including President Biden, have yet to put preserving democracy at the top of their agenda. They have not sounded the alarm in a way that has caught the public's attention and roused Americans to respond to the gathering danger.
President Biden has periodically spoken about the dangers our democracy faces, as he did in a speech in October when he said, "Nothing about our freedom is guaranteed. We have to work for it." And next month he is convening a democracy summit to discuss how to coordinate efforts.
Critics warn that these occasional forays into talking about democracy reform threaten to become Biden's equivalent of Trump's frequently proclaimed "infrastructure weeks" - all words, no action. They fault Biden for not making democracy preservation the centerpiece of his concerns or using the bully pulpit to sound the warning about the perilous state of democratic institutions.
But at least Biden seems to care.
Can we say the same for Sen Kyrsten Sinema (D-Ariz.), who insists that she will not tinker with the filibuster to pass urgently needed legislation to protect voting rights? Those measures would stem the Republican tide aimed at drowning our freedom.
On Nov. 8, Sinema threw cold water on all such proposals: "My opinion is that legislation that is crafted together, in a bipartisan way, is the legislation that's most likely to pass and stand the test of time." Is she living in a world of make-believe?
In the real world, it's better to have a law protecting voting rights adopted now and let time test it than to have no law - and no democracy - at all.
Soon it will be too late to stop Republican state legislatures from gerrymandering "the People's House" into "the Trump House."
In Georgia, the Republican legislature changed the district represented by Democratic U.S. Rep. Lucy McBath, elected to Congress after her son was shot in gun violence; McBath now lives in a newly-reconfigured district that is dominated by conservative voters.
North Carolina, where the Republican legislature in recent years has twice violated the Constitution in its partisan redistricting efforts, has drawn a map that so radically skewed the district of 17-year Democratic Congressman G.K. Butterworth that he decided to retire next year.
And not to be outdone in this race to rig elections, Texas just adopted a map that secures districts for the state's 23 Republican incumbents while creating two new safe Republican seats - all after the 2020 census attributed the state's growth to increasing minority populations.
"The competitive Republican seats are off the board," acknowledged Adam Kincaid, leader of the National Republican Redistricting Trust.
Increasing noncompetitive districts incentivizes more extreme positions by Representatives catering to an extreme base. If you like a House where Republican leader Kevin McCarthy (R-Calif.) refuses to discipline Rep. Paul Gosar (R-Ariz.) for posting an anime video in which he killed Rep. Alexandra Ocasio-Cortez (D-N.Y.), you'll love a House led by Jim Jordan (R-Ohio) or Marjorie Taylor Greene (R-Ga.).
Some lawyers and American jurors are doing what they can to oppose the authoritarian threat. On Nov. 23, a Virginia jury awarded $26 million to injured victims in their case against the white supremacist leaders of the 2017 "Unite the Right" rally in Charlottesville.
Former Attorney General Eric Holder is also using the legal system to help. On Nov. 23, his National Redistricting Action Fund sued Ohio for its map. We cannot count on these suits, however, because in 2019, in Rucho v. Common Cause, the Supreme Court turned the law steeply in favor of partisan gerrymandering.
Responding to that decision, and the 89 percent of Americans who oppose gerrymandering, Congress' Freedom to Vote Act would right the balance. It sets objective standards to fight unfair maps. If state legislators create a one-seat or 7 percent advantage to either party beyond what a state's population would entitle it, the Act creates a presumption of illegality that forces partisan proponents to disprove in court.
Without this correction, the benefits of expanded child tax credits, financial support for child care or elder care, better health care and combating climate change will escape ordinary Americans.
It is understandable that President Biden has devoted so much energy to securing passage of the Build Back Better Act, his signature legislation which provides those benefits and more. He seems to believe that if he can show people that the government can make their lives better, they will vote against an authoritarian takeover.
But without a fair electoral system, there is no future for the Build Back Better Act - and no way for people to translate into political reality their gratitude for the help the government provides. That is why the president must immediately and publicly press the case for curbing the filibuster that threatens the Freedom to Vote Act.
On Oct. 20, Republican Senators blocked even debate on Sen. Joe Manchin's (D-W.Va.) compromise measure, and more recently, on the John Lewis Voting Rights Advancement Act. Hope that Manchin might support a filibuster carve-out depends on pressure from the president and continuing advocacy by West Virginia Democrats. If Manchin does so, an isolated Sinema might not be far behind.
The president must pound on a simple truth: Nothing should be allowed to stand in the way of preserving every citizen's equal right to participate in choosing our government. As President Obama put it in his farewell address, "It falls to each of us to be . . . anxious, jealous guardians of our democracy."
President Biden, Sen. Manchin and especially Sen. Sinema need to heed those words and remember that there is no higher calling in this moment of peril than to safeguard our democratic freedoms with unrelenting vigilance.
NOTICE: This post has been updated from the original to correct the state in which the jury awarded $26 million to victims of the 2017 "Unite the Right" rally.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America's death penalty, including "Gruesome Spectacles: Botched Executions and America's Death Penalty." Follow him on Twitter @ljstprof.
Dennis Aftergut is a former federal prosecutor.