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Analysis

The Clash Over the Vote

Former President Donald Trump’s Big Lie of a stolen election drove a state-based legislative campaign to attack voting rights that only Congress can stop.

January 18, 2022
Collage of images of voting rights protests framing an image of the Capitol split in half
Alex Wong/SOPA Images/Bettmann/Heritage Images/Getty/Library of Congress

This is an excerpt from the new edition of The Fight to Vote by Bren­nan Center for Justice Pres­id­ent Michael Wald­man. The book tells the dramatic story of the continu­ous struggle to win and main­tain voting rights through­out Amer­ican history, with two new chapters recount­ing the new assault on voting rights and the push for federal legis­la­tion to stop it. 

On March 26, 2021, Geor­gia governor Brian Kemp sat at a polished table, brow furrowed, pen in hand. Six middle-aged white men in dark suits flanked him. They posed in front of an oil paint­ing of a slave plant­a­tion. Kemp was there to sign the Elec­tion Integ­rity Act, a stat­ute born in contro­versy, target­ing Black, Latino, and Asian voters, which would help set off a high-decibel national debate. As the men stood stiffly, Repres­ent­at­ive Park Cannon, a Black Demo­cratic legis­lator, knocked on the door of the governor’s office. Two beefy state troop­ers grabbed her by both arms and arres­ted her, drag­ging her through the halls and out of the Capitol.

In a lurid flash the tableau captured a dramatic polit­ical story. In the early months of 2021, the Big Lie drove state legis­latures across the coun­try to mount an attack on voting right­s—the most concer­ted attempt to roll back voting since the Jim Crow era.

Park Cannon is escorted away by Georgia State Troopers Alyssa Pointer/Atlanta Journal-Consti­tu­tion via AP
Geor­gia state troop­ers arrest and remove state Rep. Park Cannon from the Geor­gia Capitol on March 27, 2021.

By the Bren­nan Center’s ongo­ing count, Repub­lican legis­lat­ors intro­duced more than four hundred bills in forty-eight states to restrict the vote. These were not just thrown in the hopper by back­bench­ers hoping for a few good hours on Twit­ter. By Octo­ber 2021, thirty-three bills in nine­teen states had become law. Many of these propos­als aimed to undo the prac­tices that had success­fully expan­ded access the previ­ous year—espe­cially those that let citizens vote by mail or early. Others expan­ded purges (which removed people from the rolls) or author­ized partis­ans to harass citizens. The push came hard­est in states with the fast­est-grow­ing minor­ity popu­la­tions, states that had flipped to the Demo­crats or were threat­en­ing to do so. And the proposed restric­tions uncan­nily hit hard­est Black, Latino, and Asian citizens. Many of these meas­ures once would have been stopped or slowed by the Voting Rights Act and its require­ment that such changes be “precleared” by the Justice Depart­ment or a federal court. Now, thanks to the Supreme Court, legis­lat­ors could act with impun­ity.

The fight first came into view in Geor­gia. Vote by mail had been enacted there by Repub­lic­ans, but in 2020 it was heav­ily used by Demo­crats. The legis­lature prepared to effect­ively repeal it for those under sixty-five—mean­ing that older, whiter, more conser­vat­ive citizens could still vote absentee. The proposal ended early voting on the Sunday before Elec­tion Day, the day Black churches organ­ized “souls to the polls” drives. It repealed auto­matic voter regis­tra­tion, which Brian Kemp had proudly created as secret­ary of state just a few years before.

For some Repub­lic­ans, it went too far. The state’s lieu­ten­ant governor refused to preside over the legis­lat­ive debate. Lobby­ists for major corpor­a­tions includ­ing Delta Air Lines and Coca Cola—long allies of the Geor­gia Repub­lican party—urged a retreat. The behind-the-scenes scramble had some impact. As finally passed, the restric­tions were less severe—but they were just as targeted. The new law banned mobile voting centers, for example, which only had been used in Atlanta. It made it a crime to give water or snacks to people wait­ing in line at a polling place, in a state where Black people were far more likely than white people to have to queue for long peri­ods. It cut back on drop boxes and required more proof of iden­tity to vote absentee.

At the last minute, spon­sors slipped in perhaps the most danger­ous provi­sion. It sought to under­mine the inde­pend­ent offi­cials who had stood up to Trump and declared Biden the victor. The law created a new elec­tion board respons­ible to the Repub­lican legis­lature, taking power away from the secret­ary of state. The law also effect­ively let the legis­lature remove county elec­tion offi­cials (rais­ing the risk that state lawmakers could simply take over the machinery in Demo­cratic Atlanta). It was a new omin­ous twist: aiming not only to limit who could vote but rig who could count the votes. Not just vote suppres­sion, but elec­tion subver­sion.

Geor­gi­a’s law had a concuss­ive impact. Pres­id­ent Biden denounced it as “Jim Crow in the Twenty-First Century.” Corpor­a­tions that had professed fealty to racial equal­ity the year before during Black Lives Matter protests now felt pres­sure from their own employ­ees to do some­thing. Exec­ut­ives, led by Ken Frazier, the CEO of Merck, and Ken Chenault, former CEO of Amer­ican Express, signed protests and took out full-page ads. Major League Base­ball moved the All-Star game out of Atlanta. The Geor­gia House, in turn, voted to revoke a jet fuel tax break that bene­fit­ted Delta Air Lines in punish­ment for its criti­cism of the new law. Senator Mitch McCon­nell, long the cham­pion of Citizens United, now warned corpor­a­tions to “stay out of polit­ics.”

Cover of the 2022 reissue of Michael Waldman's "The Fight to Vote"

Voting restric­tions moved forward in other states. The governors of Iowa and Flor­ida signed new laws. Ugly motives were barely concealed. An Arizona legis­lator who sponsored that state’s propos­als made head­lines when he said that he did not think every­one should vote. At a hear­ing on a restrict­ive bill, Repres­ent­at­ive John Kavanaugh explained that when it came to voters, “Quant­ity is import­ant but we have to look at qual­ity as well.” Texas bill S.B. No. 7 origin­ally said it aimed to protect the “purity of the ballot box,” a phrase from the state’s consti­tu­tion used to justify all-white primar­ies in the Jim Crow era. The word­ing was removed only after it was called out during a conten­tious debate on the bill.

Increas­ingly it became clear that a key stra­tegic goal was to remold state elec­tion machinery to hand control to partis­ans. New laws and propos­als targeted who would count the votes, strip­ping power from elec­tion offi­cials. These schemes aimed to ensure that in 2024, inde­pend­ent offi­cials could not stand up to polit­ical bully­ing as they had in 2020.

In Texas, legis­la­tion neared passage in June 2021 that would cut back on early voting, and impose crim­inal penal­ties on local offi­cials who widely send out ballot applic­a­tions. It barred drive-through voting and twenty-four-hour polling places, the innov­a­tions imple­men­ted by Lina Hidalgo in Harris County in 2020. It prohib­ited voting on Sunday morn­ings, the time used by Black churches for “souls to the polls” organ­iz­ing drives. And it gave partisan judges the power to over­turn elec­tion results. Follow­ing the trend set by Geor­gia, it imposed vague new crim­inal penal­ties on elec­tion offi­cials if they modi­fied or suspen­ded rules in an emer­gency unless it is “expressly author­ized” by the state’s elec­tion code. “Other portions of S.B. No. 7 impose crim­inal penal­ties for activ­it­ies involving count­ing ballots, deal­ing with mail-in ballot applic­a­tions, mail­ing early voting mater­ial, provi­sional ballots, ballot duplic­a­tion, and poll watch­ers,” a watch­dog group summar­ized.

With an hour left to go, Demo­cratic lawmakers bolted, leav­ing the Senate short of a quorum and tempor­ar­ily killing the bill. The governor called a special session in July to focus on restrict­ive elec­tion laws. When it began, Demo­crats slipped out of Austin, chartered a plane, and flew out of state. Texas governor Greg Abbott threatened to arrest them. Even­tu­ally they would trickle back to Texas, and the legis­la­tion even­tu­ally passed, but not before the lawmakers made a point on the national stage.

“We are now taking the fight to our nation’s Capitol,” the Demo­crats said in a state­ment. “We are living on borrowed time in Texas.” They resur­faced in Wash­ing­ton, D.C., where they joined a move­ment demand­ing federal action.

For the People

It had the makings of an epic clash: state legis­latures were rush­ing to restrict the vote. At the same time, Congress had the power to stop that voter suppres­sion in its track­s—leg­ally and consti­tu­tion­ally. The great ques­tion was whether it had the polit­ical will to do so.

Already, for the first time in decades, Demo­crats and progress­ives had begun to put demo­cracy reform at the center of their polit­ics. The new focus took shape after the 2016 elec­tion. Trump’s victory startled many Amer­ic­ans, shaken by the coun­try’s divi­sions and the rise of angry white nation­al­ism as a main­stream polit­ical force. Many saw Trump as part of a global back­lash against plur­al­ist, multiracial demo­cracy.

In Grand Rapids the morn­ing after Trump won, a twenty-eight-year-old named Katie Fahey sat in her kitchen and scrolled, wincing, through her social media feed. She tapped out a Face­book post. “I’d like to take on gerry­man­der­ing in Michigan,” she wrote. “If you’re inter­ested in doing this as well please let me know.” She added a smiley face emoji. Within weeks thou­sands of volun­teers had signed up, and draf­ted a ballot meas­ure to set up a nonpar­tisan commis­sion to conduct redis­trict­ing. Rely­ing only on volun­teers, Fahey’s group gathered signa­tures in the snow to qual­ify the proposal for the ballot. It won, as did similar laws in Color­ado, Missouri, and Utah. That same day, in Flor­ida, voters ended that state’s notori­ous felony disen­fran­chise­ment system, which had barred 1.4 million from voting. A ballot meas­ure to restore the right to vote for people with a past felony convic­tion needed 60 percent to win. Organ­izers, many of them formerly incar­cer­ated, enlis­ted conser­vat­ives, reli­gious lead­ers, and police chiefs. Instead of hiding they went door to door, asking to have their rights restored. Amend­ment Four passed with a surpris­ing 64 percent. Repub­lican legis­lat­ors quickly moved to undo the change, and civil rights groups were chal­len­ging that in court.

Primary voters stand in a long line to vote Asso­ci­ated Press
Voters line up in Atlanta’s Cent­ral Park to cast their ballots.

Politi­cians respon­ded to the surge in public support for reform. Sixteen states plus the District of Columbia had passed or imple­men­ted auto­matic regis­tra­tion, boost­ing rates across the coun­try. Most were Demo­cratic-lean­ing states, but not all. Alaska voters enacted it by ballot meas­ure. In Illinois, Repub­lican governor Bruce Rauner signed it into law after legis­lat­ors passed it unan­im­ously.

In 2017, Demo­crats took control of the U.S. House of Repres­ent­at­ives. Nancy Pelosi returned as Speaker. It was far from obvi­ous that party lead­ers would embrace reform. (Repres­ent­at­ive Steny Hoyer, Pelosi’s deputy and long­time rival, had told me previ­ously, “If we win, let me tell you what we’re going to focus on: not this. People don’t care.”) Why the shift? A new polit­ical action commit­tee, End Citizens United, had mobil­ized Demo­cratic candid­ates who announced they would shun corpor­ate funds. The group was expli­citly polit­ical. Forty new lawmakers were elec­ted with a pledge to make polit­ical reform a top prior­ity. Pelosi intro­duced the For the People Act with the symbol­ic­ally signi­fic­ant denom­in­ator H.R.1.

It was novel to find demo­cracy reform at the center of either party’s agenda, and some lawmakers were uneasy. A cluster of Demo­cratic House members quietly resisted. On a street near the Capitol one morn­ing, a congress­man told me he would oppose the plan, and that few cared. His timing was off. At that very moment, a block away, Repres­ent­at­ive Alex­an­dria Ocasio-Cortez, the newly elec­ted firebrand from New York City, chal­lenged a panel of witnesses, “Let’s play a game.” Meth­od­ic­ally she drew them out to show how porous campaign finance and ethics laws were. A video of the exchange went viral, quickly amass­ing 40 million views, making it the most watched polit­ical video ever on Twit­ter, all on the arcane topic of elec­tion and lobby­ing law. The caucus quickly fell in line, and H.R.1 passed the House on March 8, 2019. It was the most sweep­ing demo­cracy reform plan to pass either cham­ber of Congress in half a century.

Now it was Janu­ary 2021, and some­what to their surprise after the ups and downs of the elec­tion season, the Demo­crats had control of the White House, House, and Senate. (With a fifty-fifty split, the vice pres­id­ent breaks Senate ties to give the party the control.) And with states rush­ing to pass restrict­ive laws, federal voting rights legis­la­tion suddenly seemed not like a “nice to do” item or a “want to do” but a “must do.”

The For the People Act would set national elec­tion stand­ards, guar­an­tee­ing access to vote by mail and requir­ing adequate early voting. It would extend auto­matic voter regis­tra­tion nation­wide. It also addressed redis­trict­ing: estab­lish­ing guidelines to block racial and partisan gerry­man­der­ing, and setting up inde­pend­ent commis­sions to draw lines. The bill included signi­fic­ant campaign finance reform. It would require disclos­ure of “dark money,” the funds used in elec­tions that were not disclosed. It also would revive the federal system of public finan­cing of campaigns, with match­ing funds provided for small indi­vidual contri­bu­tions to congres­sional or pres­id­en­tial candid­ates.

The voting and redis­trict­ing provi­sions, in partic­u­lar, would over­ride the actions of state govern­ments. Congress has the power to do this under the Consti­tu­tion’s Elec­tions Clause. (That’s the provi­sion James Madison insisted on, using “words of great latit­ude” because it was “impossible to fore­see the abuses” legis­latures might dream up, described in Chapter 2.) The Supreme Court recently reaf­firmed that sweep­ing author­ity. In a 2019 ruling, an opin­ion writ­ten by Chief Justice Roberts noted, “the Framers gave Congress the power to do some­thing about partisan gerry­man­der­ing in the Elec­tions Clause,” and even poin­ted to H.R.1 as a prime example.

Chief Justice John Roberts stands among the crowd at President Joe Biden's inauguration Bill Clark/Getty
Chief Justice John Roberts stands among the crowd onstage at the Janu­ary 2021 inaug­ur­a­tion of Pres­id­ent Joe Biden.

A second piece of import­ant legis­la­tion moved along a paral­lel track. It aimed to restore the full strength of the Voting Rights Act after it was gutted by the Supreme Court. It would rees­tab­lish “preclear­ance,” which had been the law’s most effect­ive element. The legis­la­tion was renamed the John Lewis Voting Rights Advance­ment Act. To over­come the justices’ skep­ti­cism about whether the Voting Rights Act could be consti­tu­tional at all, spon­sors painstak­ingly amassed data and evid­ence of contin­ued racial discrim­in­a­tion. The meas­ure would not pass the House until August 2021.

Biden had not campaigned on avid support of voting legis­la­tion. But like many, he was shaken by the elec­tion and Trump’s effort to over­turn it. He had sponsored earlier laws to reau­thor­ize the Voting Rights Act. His true passion as a young legis­lator was campaign reform. In the spring of 1993, he paid an off-the-record visit to Pres­id­ent Bill Clin­ton in the Oval Office. Demo­crats were draft­ing campaign finance reform, and I atten­ded as Clin­ton’s aide work­ing on the legis­la­tion. Go further, Biden urged. Try to enact full public finan­cing of campaigns. It would change Wash­ing­ton. Biden’s voluble passion was strik­ing, his ideal­istic language not often heard in the Oval Office. The bill Demo­crats proposed that year was far weaker than Biden hoped for, and it failed in any event. At the time Biden had little organ­iz­a­tional back­ing for his stance.

Now an ener­gized grass­roots move­ment pressed for action. For decades, demo­cracy reform failed to reach the top tier of progress­ive goals partly because of divi­sions between civil rights groups, led by people of color, and good govern­ment groups, prin­cip­ally white and suburban. That was espe­cially true on issues includ­ing redis­trict­ing reform and campaign finance. Not this time: meld­ing voting rights with anti-corrup­tion propos­als turned out to be a force magni­fier. Now expli­citly polit­ical commit­tees, includ­ing a group led by former Attor­ney General Eric Holder that pressed for redis­trict­ing reform, and Stacey Abrams’s Fair Fight Action, played prom­in­ent roles. Progress­ive grass­roots networks includ­ing Indi­vis­ible and MoveOn joined insur­gent groups that arose in the racial justice move­ment, such as Black Voters Matter. Tradi­tional reform lobbies Public Citizen and Common Cause had their own coali­tion. Labor unions, once skep­tical of reform, mobil­ized members. It was the broad­est push in decades. Fret­ful comment­at­ors who thought a trimmed-down bill might find an easier path to passage misread the polit­ical strategy: narrower bills have narrower constitu­en­cies of support.

Once again H.R.1 passed the House. Now it was also intro­duced as the lead bill in the Senate: S.1. Major­ity Leader Charles Schu­mer repeatedly declared, “fail­ure is not an option.” The legis­la­tion was wildly popu­lar. A tape of a private brief­ing held by the conser­vat­ive Koch network, leaked to Jane Mayer of the New Yorker, suggests its potency. The group’s poll­ster had tested argu­ments against the meas­ure, and found, discon­cert­ingly, that Repub­lic­ans as well as inde­pend­ents and Demo­crats strongly suppor­ted the bill. Better not to try to argue against it, he explained, since turn­ing public opin­ion would be “incred­ibly diffi­cult.” Better to rely on, instead, “under-the-dome-type strategies” to obstruct the bill. As Senator Ted Cruz of Texas told lobby­ists in his own leaked phone call, this was “an all-hands moment.”

Indeed, the legis­la­tion would soon crash hard into the arcane rules of the U.S. Senate. It takes sixty senat­ors to end a fili­buster, and thus allow a vote on legis­la­tion. The fili­buster is not in the Consti­tu­tion. In fact, the framers considered and rejec­ted the idea of requir­ing super­ma­jor­it­ies. It was used through­out the twen­ti­eth century espe­cially to thwart civil rights legis­la­tion. Then, as parties grew more polar­ized, it became used to block . . . well, almost anything. It is simply assumed that legis­la­tion require sixty votes. In 2013, for example, after the massacre of element­ary school chil­dren at Sandy Hook, legis­la­tion to strengthen back­ground checks for gun purchases had 90 percent public support and a major­ity of the Senate. It died due to a fili­buster. Senate offi­cials tallied as many “cloture” motions to end a fili­buster in the past decade as in the entire previ­ous half century.

Now, as in earlier eras, the fili­buster was being used to block vital voting rights legis­la­tion.

Former President Obama speaks at the funeral of Representative John Lewis Asso­ci­ated Press
Former Pres­id­ent Barack Obama speaks at the funeral of Rep. John R. Lewis.

In 2020, Repres­ent­at­ive John Lewis died. Lewis, of course, had led the march on Edmund Pettus Bridge that led to the passage of the Voting Rights Act. Since 1987, he had served in Congress, where he was a revered figure. At Lewis’s nation­ally tele­vised funeral, Barack Obama stood over the late Congress­man’s casket. The former pres­id­ent deman­ded action on voting rights, not in 1965, but now: “Let’s honor him by revital­iz­ing the law that he was will­ing to die for.” Obama called for passage of the For the People Act. “And if all this takes elim­in­at­ing the fili­buster­—an­other Jim Crow relic—in order to secure the God-given rights of every Amer­ican, then that’s what we should do.” Obama’s pungent words stung. As pres­id­ent he had done little to advance the issue. Now he had crys­tal­ized a new grow­ing consensus among Demo­crats: the fili­buster must go.

Senat­ors had changed the fili­buster before. In 1974, they cut the number of votes needed to end a fili­buster from sixty-seven to sixty. In the past decade, Repub­lic­ans and Demo­crats had ended it for Supreme Court, lower court, and exec­ut­ive branch nomin­a­tions. Excep­tions already were carved out for bills ranging from budget recon­cili­ation to milit­ary base clos­ings and trade agree­ments, all of which required only a major­ity.

In 2021, two Demo­cratic senat­ors, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, made clear they did not want to elim­in­ate the fili­buster. Manch­in’s stance perplexed. He was a former secret­ary of state who had sponsored the prede­cessor reform bill in years past, but now insisted on Repub­lican support—an impossib­il­ity in the polar­ized Congress. He declared he would not back S.1. Then he proposed the elements of a stripped-down version of the bill that—while less sweep­ing—still included key voting, redis­trict­ing, and campaign finance rules. When Senator Schu­mer tried to begin debate on June 22, fifty Repub­lic­ans objec­ted, stop­ping the bill, at least for now. Later in the summer they blocked votes on redis­trict­ing and “dark money” campaign spend­ing. In Septem­ber, Manchin and other Demo­crats form­ally intro­duced the new version of the legis­la­tion, now rechristened the Free­dom to Vote Act. Even in its new form, it would be the most signi­fic­ant voting right bill in decades.

Will there be enough polit­ical pres­sure and momentum to force action, includ­ing the possib­il­ity of a carve-out to the fili­buster for elec­tion laws? Will the Free­dom to Vote Act simply die in the Senate, a victim of the crowded congres­sional calen­dar? Will Joe Biden throw the full weight of the White House behind the urgent need for reform?

President Joe Biden speaks from a podium, surrounded by American flags and onlookers Asso­ci­ated Press
Pres­id­ent Joe Biden deliv­ers a speech at the National Consti­tu­tion Center in Phil­adelphia.

In early summer, Biden spoke at the National Consti­tu­tion Center in Phil­adelphia. He had hast­ily sched­uled the speech after Black lead­ers chal­lenged him to do more in a White House meet­ing. The pres­id­ent strode into the atrium of the museum where he had once served as board chair and in simpler times could regu­larly be found in the lobby, schmooz­ing and having coffee. Ringed by flags, Biden decried the Big Lie. He urged action on H.R.1, winning thun­der­ous applause, and the John Lewis Voting Rights Advance­ment Act. He noted that the Justice Depart­ment had doubled the number of lawyers work­ing to protect voting rights. He was partic­u­larly incensed by the new provi­sions find­ing their way into state laws that gave partis­ans the power to declare the winner. “To me, this is simple,” he said. “This is elec­tion subver­sion—who gets to count whether or not your vote coun­ted at all.” Rhet­or­ic­ally Biden raised the stakes sky high. “I’ve said it before: We are facing the most signi­fic­ant test of our demo­cracy since the Civil War. That’s not hyper­bole. Since the Civil War. The Confed­er­ates back then never breached the Capitol as insur­rec­tion­ists did on Janu­ary the sixth.” Rhet­or­ic­ally Biden drew a red line. Would such power­ful words produce action?

Shortly before Biden walked out to speak, ampli­fi­ers blared a soundtrack of clas­sic rock. On came “We Won’t Get Fooled Again,” the 1971 song by The Who about dashed revolu­tion­ary hopes. (Meet the new boss / Same as the old boss.) Reformers hoped that was not an omen.

FIGHT TO VOTE by Michael Wald­man. Copy­right © 2016 by Michael Wald­man. Reprin­ted by permis­sion of Simon & Schuster, Inc. All rights reserved.