Congress prepares for major fight over voting laws in the wake of Trump's false fraud claims
Former President Donald Trump’s “big lie” about a stolen election may have been discredited over and over in the courts, and disgraced by the attack on the U.S. Capitol, but the corrosive effect of his dishonesty will linger on, complicating efforts to strengthen American elections.
One of the Democrats’ top priorities in the new Congress is a package of election reforms, including provisions that experts say would make it harder to cheat but easier to vote. Many of these provisions are ones that Republicans have historically resisted for ideological reasons. But despite Democratic majorities in the House and Senate, and their control of the White House, two huge developments over the past year will make it much more difficult for them to push through a voting reform package.
First, there are the long-standing Republican arguments about the supposed prevalence of fraud and cheating at the polls — which the GOP has leaned on for decades to make voting more difficult. These arguments have long been dismissed as without merit by liberals, voting experts and even some inside the Republican Party itself.
Still, Trump’s claims about the legitimacy of the November election — which were embraced by a wide swath of the GOP’s rank-and-file supporters — indicate that Republicans remain deeply suspicious about voter fraud despite little evidence to back up that belief.
In an op-ed published before the election, Ben Ginsberg — who for more than 20 years was one of the GOP’s fiercest election attorneys and led attempts to root out cheating — said that Republican anxiety about fraud is effectively baseless.
“The truth is that after decades of looking for illegal voting, there’s no proof of widespread fraud. At most, there are isolated incidents — by both Democrats and Republicans. Elections are not rigged,” he wrote.
Yet over the past 20 years, Republican lawmakers have limited early voting, purged voters from the rolls simply for not voting and moved to stop laws in states that would allow ex-cons to cast ballots. They’ve also tried to require voters to show the kinds of IDs at the polls that are more reliably used by Republicans — such as gun permits — while making it harder for voters to use IDs more frequently used by Democrats, like the ones given to college students.
Democrats call such attempts “voter suppression,” and some Republicans have admitted at times that voter ID laws are designed to help the GOP. Republican lawyer Justin Clark was caught on tape in 2019 saying that “traditionally it’s always been Republicans suppressing votes.” Voter suppression in the U.S. has a long history of being used against African Americans in particular.
If there was any doubt that stricter voting laws were mostly a bad-faith effort at helping Republicans get elected, Trump’s attempt to stay in power after an election that he clearly lost removed it. Trump constructed an entirely imaginary claim of a stolen election, which was repeatedly debunked and exhaustively rejected in more than 60 court cases. He tried something similar in 2016, repeatedly and baselessly insisting that Democrat Hillary Clinton had won the popular vote that year only because millions of illegal votes were cast in her favor.
But thanks in part to Trump’s attempt to overturn the 2020 election, Democrats — along with voting rights advocates and academics who study the health of democracy — now feel emboldened to enact reforms to the current system. But they are also alarmed by the durability of Trump’s lies and how challenging it will be to make changes.
“Some people are going to be opposed to democracy reform, but they were always opposed,” Myrna Pérez of the Brennan Center for Justice, a voting rights organization, told Yahoo News. “It is really a code for ‘people not like me not participating in voting.’”
Last week, more than 80 scholars — including a handful of well-known conservatives — signed a letter in which they said they have “watched the recent deterioration of U.S. democracy with growing alarm.”
The group identified numerous trends that have taken place in “other declining democracies: hyper-partisan polarization, mutual political enmity and distrust, zero-sum politics, lack of tolerance for opposition and minorities, rampant propagation of falsehoods and conspiracy theories, and the encouragement or rationalization of violence.”
The group identified one other trend. “We also see something uniquely dangerous in America right now — an electoral system that allows for minority rule,” said the letter, which was signed by Larry Diamond and Morris Fiorina, both of them influential scholars at the conservative Hoover Institution at Stanford University. They were joined by other prominent experts on American government, including Francis Fukuyama and the sociologist Robert Putnam.
The letter, which endorsed the voting legislation already introduced in H.R. 1, a bill that passed the Democratic-controlled House in 2019, stated that “none of these reforms should be dismissed as partisan.”
The group endorsed three major planks in the legislation, which has been called the For the People Act. They said access to voting should be expanded, that congressional districts should no longer be drawn by partisan politicians and that political spending should be fully transparent, ending the era of “dark money.” They also endorsed statehood for Washington, D.C., and Puerto Rico, two progressive priorities that are not included in the legislation.
The campaign finance angle may find some support among Republicans, even though Senate Minority Leader Mitch McConnell has historically been an ardent foe of any such reforms. But the other two prongs in the legislation are anathema for most Republicans.
A few weeks from now, after the Senate finishes its second impeachment trial of Trump and negotiates a COVID-19 relief package, attention in Washington will turn to this looming fight. The Democratic-sponsored bill would set national standards for expanding the vote, while keeping other parts of how elections are handled under local jurisdiction.
The bill would mandate at least 15 days of early voting in federal elections, and restore voting rights for ex-felons and prevent purges of election rolls. It would require that nonpartisan commissions draw the lines for congressional districts, which would reduce the impact of gerrymandering, a process that tends to reward radicals in both parties — increasing polarization — by stacking their districts full of voters from their own party. It would make voting by mail an option, without having to provide a reason, in every state.
And it would expand voter registration in such a way that increases participation and enhances the accuracy of voter lists state by state. One of the biggest objections to voting by mail is that if a state’s voter rolls are not up to date, many ballots are sent to wrong addresses. No evidence has surfaced of this weakness being abused by any coordinated cheaters, but voting advocates agree that voter rolls should be up to date and accurate.
H.R. 1, which has not been voted on by the Senate, would require all states to implement automatic voter registration, which would be one primary way to fix this problem. Anytime someone interacted with a state agency, whether in updating their driver’s license or in some other way, they would be registered unless they chose not to be. There are 17 states that do this already.
The U.S. is an outlier when it comes to voter registration. The Brennan Center studied 17 advanced democracies and found that the U.S. was one of only six that required its citizens to assume responsibility for registering to vote.
Yet already, Republicans are mounting attacks on voting by mail, trying to roll back the expansions that took place during the pandemic as Trump repeatedly attacked the practice and spread lies that mail-in voting would lead to massive fraud.
There are legitimate questions about every state’s readiness to expand to a vote-by-mail system, but the test for Republicans will be whether they push states to ramp up their preparations and look to provide them the resources they need to do so, or whether they simply block the effort to make voting more accessible.
“I think the most disappointing thing about 2020 is the breakdown that we had in Congress and the White House related to vote by mail,” Washington Secretary of State Kim Wyman, a Republican, told Yahoo News last year.
“Both sides dug in. On the left, it was, ‘If we don’t vote completely by mail, this election is going to be just rampant suppression,’ and on the right, ‘If we do any expansion of absentee voting or vote by mail, we’re going to have rampant fraud.’”
“We have to look at some long-term stable funding for local election officials that probably needs to come from the federal government,” Wyman said. “We need a bipartisan solution here.”
Democrats and voting rights activists are convinced that, given the GOP’s history, a bipartisan agreement to simply expand voting access may be impossible. The willingness of 147 Republicans in Congress to vote to overturn the election, and the failure of many in the GOP to repudiate Trump’s lies about a rigged result, is a sign that they are likely correct.
“My alarm is going up. The events of Jan. 6 were sickening and horrifying, and the more we learn, the more worried I am. But in some ways, I’m more worried about the extent to which Republicans in Congress have moved on and don’t want to hold Trump or anybody accountable,” Lee Drutman, a scholar at the New America Foundation who helped organize the letter, told Yahoo News.
Accountability goes beyond the impeachment trial for Trump. Many Republican lawmakers perpetuated and amplified Trump’s lies. Some even have essentially openly mused about violence becoming an acceptable tactic.
“I really hope that this is enough of a wake-up call to enough people to see that the long-term prognosis of American democracy is looking increasingly dire unless we take some big steps, but I haven’t seen those signals yet,” Drutman said.
The bipartisan group of academics pointed out the danger of the Republican Party’s “minority rule.”
“It is not only possible but now common for one party to win the presidency and the Senate, and then seek to establish long-term control over the judiciary despite a majority of citizens preferring a different party,” they said.
Twice in the past 20 years a Republican has won the presidency despite losing the popular vote. During the past decade, Republicans have used their control of state legislatures to turn the practice of drawing disfigured congressional districts into a dark art, giving them a massive advantage in the constant battle to gain control of the House.
And in the Senate, where Wyoming’s 578,759 residents have the same representation as California’s 39.5 million, the McConnell-led GOP has engaged in hardball tactics over the past several years to push through Republican priorities.
The Supreme Court has been a showcase for these dynamics. In 2016, conservative Justice Antonin Scalia died in March. McConnell refused to allow the Senate to vote on Democratic President Barack Obama’s nominee for the court, Merrick Garland. McConnell claimed that the election should decide who filled the seat. Trump, a Republican, won the fall election in the Electoral College despite losing the popular vote to Hillary Clinton by about 3 million votes, and Republicans filled the seat with Justice Neil Gorsuch.
Six weeks before the 2020 election, liberal justice Ruth Bader Ginsburg died, and McConnell threw his previous rationale out the window. He had the Republican-controlled Senate quickly fill that seat with Justice Amy Coney Barrett.
The courts are another key arena where disputes over voting play out. The Voting Rights Act of 1965 was gutted in the Supreme Court’s 2013 decision in Shelby vs. Holder, which opened the floodgates for Republican-controlled states to make it harder to vote. There were 14 states that had new voting restrictions in the 2016 election. All but one of those state legislatures was Republican-controlled. And 25 states in all have passed restrictions on voting since 2010.
After Democrats took control of the House in 2018, they began working to restore the VRA. But the For the People Act would also reverse some of the ways in which the GOP has made it more difficult to vote. Trump himself openly admitted in 2020 that if voting were easier, and more Americans voted, it would hurt Republicans. Higher “levels of voting,” he said, would mean “you’d never have a Republican elected in this country again.”
But Ginsberg argued that the 2020 election showed that the Republican Party has been wrong to conclude that more voting means they can’t win elections.
“Republicans did just fine in a high-turnout election,” Ginsberg said in a recent panel discussion. He’s mostly right. The GOP increased its seats in the House, and held on to state legislatures in several key states. But thanks to a pair of runoff elections in Georgia set against the backdrop of Trump’s claim that the presidency had been “rigged,” they also lost the majority in the Senate.
The most toxic impact of minority rule is that once a party goes down the path of holding on to power by any means necessary, experts say, it becomes a downward spiral.
“Minority rule can prompt and enable the minority party to take increasingly radical and antidemocratic actions to entrench its dominance,” said the letter signed by the bipartisan group of scholars. “When a ruling party bends the rules to suppress opposition votes or rig the political playing field, a country can no longer be said to be a democracy, no matter how much it may allow freedom of the press and association.”
In that view, the Jan. 6 insurrection was the outgrowth of years of antidemocratic behavior in the GOP that had grown more severe over time.
Or as Seth Masket, a political science professor at the University of Denver, put it, “the longer the anti-democratic spiral continues, the harder it becomes to reverse.”
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