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Analysis

Voting’s Death by a Thousand Cuts

Without new legislative protections, millions of voters across America — many of them people of color — are vulnerable to having their voices silenced.

July 20, 2021
voting
ark Wilson/Getty

Last week, I traveled to Phil­adelphia to watch Pres­id­ent Biden give a passion­ate defense of voting rights at the National Consti­tu­tion Center.

He star­ted off remind­ing Amer­ic­ans that the Novem­ber elec­tion was an extraordin­ary achieve­ment. Despite the pandemic, it had the highest voter turnout since 1900. The pres­id­ent also lauded the elec­tion offi­cials who made it happen while with­stand­ing “unre­lent­ing polit­ical attacks, phys­ical threats, intim­id­a­tion, and pres­sure.”

But it didn’t take long before Biden’s speech took on a more omin­ous tone. He told of the Big Lie about a stolen elec­tion that contin­ues to poison our polit­ics. He made good use of Bren­nan Center research describ­ing the ongo­ing assault on our demo­cracy, noting how 17 states have enacted nearly 30 laws to make it harder to vote. And that legis­lat­ors across the coun­try, over­whelm­ingly Repub­lican, have intro­duced nearly 400 bills to restrict the vote.

The pres­id­ent stressed that this legis­lat­ive push isn’t just about making it more diffi­cult to cast a ballot. It’s also about determ­in­ing who gets to count the votes. Instead of inde­pend­ent elec­tion admin­is­trat­ors, Repub­lic­ans across the coun­try are push­ing state legis­la­tion that will give this sacred respons­ib­il­ity to partisan legis­latures and other untrust­worthy actors. 

Biden also noted that we can’t rely on the Supreme Court to protect voting rights either. If it wasn’t clear before, it became pain­fully obvi­ous in Brnovich v. Demo­cratic National Commit­tee. The case involved Section 2 of the Voting Rights Act, under which people could chal­lenge voting laws and prac­tices that produced discrim­in­at­ory results regard­less of whether that was the intent. 

But after the conser­vat­ive major­ity’s ruling, courts might look past voting laws and prac­tices that impose dispar­ate burdens on voters of color so long as the state provides other ways to vote. For instance, if state legis­lat­ors elim­in­ate early voting on Sundays, a day Black churches drive their worship­pers to the polls, they may be able to escape liab­il­ity if voters have other options for cast­ing their ballots. As Justice Elena Kagan noted in her dissent, such “incon­veni­ences” can add up to vote suppres­sion.

As my colleague Sean Morales-Doyle told Congress on Friday, this will under­mine free and fair elec­tions.

“The real­ity is that state legis­latures are not hack­ing, but slicing away at voting rights from every angle,” he test­i­fied. “They shave away access to mail voting, they cut back on in-person voting, they trim voters from the rolls through faulty purges. While any one slice might appear minor, the end result is death by a thou­sand cuts.”

Both Biden and Morales-Doyle iden­ti­fied the legis­lat­ive solu­tions to the threats we face. By passing the For the People Act, Congress would over­ride many of the restrict­ive state laws. By passing the John Lewis Voting Rights Advance­ment Act, Congress can react­iv­ate the power­ful preclear­ance provi­sions of the Voting Rights Act of 1965. And in light of Brnovich, Congress must also strengthen Section 2 in order to fully restore the Voting Rights Act to its former glory. 

“Make no mistake — bullies and merchants of fear and peddlers of lies are threat­en­ing the very found­a­tion of our coun­try,” Biden said near the end of his speech. Now is the time for concer­ted legis­lat­ive action led by the White House. Without the For the People Act and the John Lewis Voting Rights Advance­ment Act, millions of voters across Amer­ica — many of them people of color — are vulner­able to having their voices silenced.