Democracy Remains on the Docket

A male lawyer's hand attempting to remove a gold gavel lodged inside a black boulder

Trump’s Big Lie does not pause for cloture votes in the U.S. Senate.

Republican state legislatures continue to churn out voter suppression laws without regard to the congressional calendar. Fake audits based on conspiracy theories proceed while committees meet on Capitol Hill. In short, our democracy is under attack and Congress will not save it anytime soon.

Republicans are willing to destroy democratic institutions to gain and hold power. The result is an asymmetrical war on democracy where congressional Republicans, and their state counterparts, are willing to do or say virtually anything to frustrate the will of the majority and make a mockery of the idea of the consent of the governed.

No principle is sacred, no line is uncrossable and no lie is too big if it helps Republican politicians win elections.

We have seen this asymmetry play out in Congress. Republicans first blocked a bipartisan commission to look into the seditious Jan. 6 attack on the Capitol. Now they are poised to oppose legislation aimed at protecting voting rights. Rep. Kevin McCarthy (D-Calif.) has allowed his conference to become a QAnon version of the Star Wars cantina. Meanwhile, Sen. Mitch McConnell (R-Ky.) has turned the Senate rules into a suicide pact for our democracy. 

If you want to cast blame for the Senate’s failure to protect voting rights, start with the 50 Senate Republicans who refuse to support it. They are on the wrong side of history and have cemented their legacy of cowardice. Not only are they blocking federal safeguards against voter suppression, but they’re also supporting and applauding state legislative efforts to chip away at the right to vote.

While we must all remain supporters of congressional action and cheerleaders for federal voting rights legislation, we cannot lose sight of the struggle for democracy taking place in the courts. Since January, six states have enacted comprehensive voting laws aimed at suppressing the votes of minority or young voters. I am proud to lead a team of attorneys who have filed lawsuits against all six. 

Challenging these laws in court, one by one, is time consuming and expensive. When we file a lawsuit quickly, the state argues our case is speculative and not ripe. If we wait a bit longer, the state claims it’s too close to the next election to change the rules. When we win, the state often appeals. When we lose, we are deflated and left asking what more we could have done. And, of course, the state can always pass a new law targeting the same voters with different restrictions.

Throughout my career, I have litigated hundreds of cases involving elections, voting and democracy. I have won enough cases to know that courts can empower voters to have a voice in our democracy. I have also lost cases where too many voters with as much of a right to have their ballot counted as any of their fellow citizens have had their votes rejected or denied due to no fault of their own. 

One of the enduring lessons I have learned is that every ballot tells a story. For most, they are stories of citizens who added their voice, their vote, to the chorus of democracy. For some, however, it is a more difficult story of sloppy handwriting, broken equipment, language barriers or personal circumstances that made it impossible to wait hours in line to cast a ballot in an under-resourced precinct that robbed them of their right to participate in democracy. And for far too many the story ends with ballots rejected due to inadequate mail service, changed polling locations or election judge error. 

The job of voting rights lawyers is to lift up those stories, make sure that courts hear them and defend the right to vote. Every day excellent lawyers around the country show up in courtrooms across America to tell judges that it’s not right, it’s not fair and it’s not legal to target and disenfranchise Black, brown and young voters.

I have no illusions about the inherent limitations of judicial action. Courts are imperfect venues to prevent the current wave of voter suppression laws from taking hold. Pro-voting legislation is a much better long-term solution. But the crisis our democracy faces cannot wait for the long term without immediate help. In most instances, the best lawyers can do is achieve temporary relief for one election and buy a little time for our democracy to strengthen and heal after four years of attack.

Some fear that this litigation runs the risk of creating bad laws and precedent for the future, but this fear misapprehends the nature of the threat we face. Elections have consequences and without fair voting rules in 2022 and 2024, the consequences may be a permanent loss of democracy. We do not have the luxury to wait until sanity returns to the Republican Party, Congress passes new laws or the majority of the U.S. Supreme Court changes. 

While the American people continue to raise their voices and push for reforms, we need voting rights lawyers to continue to show up in court and tell the stories of American citizens whose right to vote is being threatened. For now, democracy remains on the docket.