Only Congress Can Save Our Democracy
Attorney Michael Carvin, representing the Arizona Republican Party, had almost finished his argument to the U.S. Supreme Court when the newest Justice, Amy Coney Barrett, asked him why Republicans have an interest in stopping Arizona from counting otherwise valid votes when the voter mistakenly cast her ballot in the wrong precinct. The pair of consolidated voting rights cases were brought on behalf of Latinx, Native American and African-American voters because the refusal to count wrong precinct ballots unequally affected people of color. Carvin’s answer was jaw-droppingly shocking, not because it was untrue, but because he let the cat out of the bag, admitting the widely known truth about voter suppression that Republicans have denied for decades.
Carvin responded: “Because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero-sum game…It’s the difference between winning an election 50 to 49 and losing an election.“
For decades, the Republican Party has been trying to win elections by making voting difficult for racial groups likely to vote for its opponents. We are intimately familiar with the modern Republican Party’s voter suppression playbook, which creates rules and requirements that seem neutral but make it harder for people of color to vote and have their votes counted. As President of the North Carolina NAACP, Dr. Barber filed a federal lawsuit, for which Ms. Hair served as lead counsel, challenging the Republican majority’s passage of a 2013 North Carolina “monster” voter suppression law that added numerous obstacles more harshly impacting African American and Latinx voters. Like the Arizona case, the North Carolina law banned the partial counting of valid votes cast out-of-precinct in federal races such as for President, Senator and Governor that are not tied to living in a particular precinct. It also adopted the nation’s strictest photo voter ID requirement, cut early voting and eliminated same-day registration, among other suppression measures.
We proved racial motive using the Supreme Court’s framework to analyze direct and circumstantial evidence to determine whether the Defendants’ stated motive — preventing voter fraud — was actually a pretext for partisan-inspired racial targeting. After years of painstaking investigation and weeks of trials, we were able to prove, as the Court of Appeals found, that the North Carolina General Assembly had targeted African American voters “with almost surgical precision.”
Years later, Carvin’s candid response confirmed the real reason for Republican-led campaigns across the country to make voting harder based on race, ethnicity, gender and class status: to gain a “competitive advantage relative to Democrats.” That is exactly what the Fourth Circuit Court of Appeals found in our North Carolina case. Refreshingly, Carvin did not trot out the usual playbook used to defend voter suppression — that it is needed to address voter fraud. Until Carvin’s admission, Republicans routinely cited voter fraud, almost with a wink and smile, as the justification for erecting barriers to voting. Study after study has found that no election fraud of the type that these barriers could impact exists.
In 2020, Donald Trump took this disinformation to a new level, claiming without any proof that the election was stolen due to voter fraud by people of color, while in the same year opposing improvements that would make voting safer and more accessible during the pandemic because “you’d never have a Republican elected in this country again.”
Trump’s own Attorney General, as well as Republican Governors and election officials, conclusively rebutted this outrageous “Big Lie” about voter fraud. In more than 60 lawsuits brought across the country by Trump and his supporters, courts consistently rejected claims of voter fraud, the most definitive refutation of the voter fraud fig leaf to date. Yet the false drumbeat of voter fraud propaganda led to an armed insurrection on January 6th aimed at overturning our democratically elected government.
The myth of voter fraud placed our democracy at risk of armed insurrection, and the more than 250 voter suppression proposals already advanced in statehouses this year place our democracy at risk of overthrow by voter suppression. It is time to put an end to this reign of voter suppression.
Democracy should not be “zero sum.” Congress must immediately enact legislation to restore the Voting Rights Act and to set minimum federal requirements for practices that encourage and facilitate voting, taking into account the history of racial subjugation in America and the real-life circumstances of voters whose economic and family situations make it difficult or impossible for them to succeed in the obstacle course states continue to erect at the ballot box.
Designing a voting system to exclude voters because of their race or the political party they tend to support is illegal under the Constitution. Carvin stripped away the fig leaf Republicans have used for decades to disguise their true motive in erecting obstacles for voters of color. This latest confession of true motive, combined with numerous court rulings documenting the unravelling of the lie, reinforces the undeniable truth revealed by this perilous period in the history of our democracy: it is time for the entire system of voter suppression measures nationwide to crumble.
Given the Supreme Court’s recent weakening of the Voting Rights Act and the rush to enact voter suppression legislation in the states, only Congress can save our Democracy by honoring the will of the people and passing legislation that will restore the preclearance protections of the Voting Rights Act, set minimum federal standards for voting and correct historic categories of exclusion from the ballot based on racial discrimination. Congress should lose no time in enacting restorative and forward-looking voting legislation that protects the heart of our democracy for the next generation.
Rev. William J. Barber is President of Repairers of the Breach and co-chair of the Poor People’s Campaign. Penda Hair is Senior Counsel at Forward Justice, a nonpartisan law and policy group working for racial and economic justice in the South.