But the announcements last week by Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona that they will not support exempting voting rights legislation from the filibuster means Congress can respond to these moves only with a bipartisan supermajority of 60 votes.
Their decision effectively provides Senate Republicans a veto on whether Congress can undo the restrictions on voting advanced by their fellow Republicans in the states and GOP-appointed justices on the Supreme Court. And that means Democrats have little chance through this decade of preserving a national floor of voting rights.
Voting rights is the most dramatic example of how the axis of Republican-controlled state governments, the GOP-appointed majority on the Supreme Court and filibusters mounted by Senate Republicans is limiting Democrats’ ability to set the national agenda, even as they hold unified control of the White House, House and Senate for the first time since 2010. The same combination threatens to roll back other civil rights and liberties, most prominently the nationwide right to abortion, which has prevailed since the Supreme Court’s Roe v. Wade decision in 1973, but also including transgender rights and the First Amendment rights of public school teachers over the discussion of race in the classroom.
With the filibuster severely limiting the prospects for legislation on those fronts that imposes any mandates on business or individuals, President Joe Biden is turning to unilateral regulatory action. But the Catch-22 he faces is that the Republican-appointed Supreme Court majority, often in cases brought by red-state attorneys general, has signaled its willingness to aggressively block those regulations, most recently by striking down the administration’s vaccine-or-test mandate for large employers.
Taken together, the offensive and defensive maneuvers by this axis amount to a revolution from below — a powerful attempt by Republican-controlled institutions to drive national policy even while Democrats hold the executive branch and Congress, the traditional levers of federal policy-making. By upholding the filibuster, Manchin and Sinema have effectively neutralized the most powerful tool Democrats have to push back: their capacity, through that unified control of the White House and Congress, to pass legislation setting new national standards in all the areas under siege from the Republican axis. And with history suggesting Democrats face a high risk of losing control of one, or both, congressional chambers in November, it may be years before they get another chance to respond.
The forceful move from the GOP-appointed Supreme Court majority and Republican red state officials to retrench previously guaranteed national rights “really magnifies the significance of this filibuster fight,” says Michael Waldman, president of the Brennan Center for Justice at New York University Law School, a nonpartisan group that advocates for voting rights. That struggle, he continues, represents “a major question of what the shape of the country is going to look like, because if Congress can’t act to protect voting rights, can’t act to protect abortion rights, unless there are 60 [Senate] votes as well as a president, then states have an open field to abuse the rights of their people and the extreme conservatives have nothing in their way.”
Battles over elections
The conflict around voting rights over roughly the past decade clearly illuminates the interlocking action-reaction dynamics of the new GOP axis.
Though intermittent skirmishes over voting rights had already erupted, the first decisive step in this modern struggle came in 2013. In the Shelby County v. Holder ruling that year, the GOP-appointed majority on the Supreme Court lit the fuse for the current confrontation by overturning the central provision of the 1965 Voting Rights Act: the requirement that states and local governments with histories of discrimination against minorities receive “preclearance” from the Justice Department before changing their voting laws. The landmark decision was rendered on a party-line and majority-rule basis, with the five justices (at that point) appointed by Republican presidents outvoting the four appointed by Democrats.
That ruling had the immediate impact of freeing from preclearance the 15 states covered in whole or part under the law (a list that includes Alabama, Georgia, Texas and Arizona in whole and Florida and North Carolina in part). It also encouraged other Republican-controlled states to pursue new restrictions by signaling “that this is a Supreme Court that doesn’t really give a blank about your voting rights,” as Jessica Levinson, a professor at Loyola Marymount Law School who specializes in election law, recently told me.
In Shelby’s aftermath, red states erected an array of new barriers to voting, including imposing tighter voter-identification requirements, intensifying voter purges and closing hundreds of polling places in urban and minority neighborhoods. These actions enormously escalated after former President Donald Trump’s false claims of fraud in the 2020 election: In 2021, 19 Republican-controlled states passed 34 laws making it more difficult to vote, according to a Brennan Center roundup.
As I quantified last year with data from the Brennan Center, the most restrictive state laws approved in 2021 have divided state legislatures almost entirely along party lines: Apart from one law in Arkansas that mixed provisions restricting and expanding access, Brennan calculated that just three of 816 state legislative Democrats had voted for any of the major bills approved by last summer, while just 19 of 1,601 state legislative Republicans had voted against any of them. Almost all of these bills faced uniform opposition from every state legislative Democrat.
Yet these bills advanced into law anyway on virtually party-line, majority-rule votes because no state legislature has a filibuster rule that requires a supermajority to approve legislation.
“Not a single state requires a 60% threshold for passing legislation,” says Lee Drutman, a senior fellow in political reform at the center-left think tank New America. “For all the Republicans who say we ought to keep the filibuster, should we also do that in the state senates? Well, maybe the Texas voting law should have required a 60% threshold? Maybe the Georgia law should have required a 60% threshold?”
Democrats don’t have the votes to stop these laws in the red state legislatures. And the Supreme Court has clearly signaled it is unlikely to impose meaningful limits on the red states: Since John Roberts became chief justice in 2005, it has never struck down a state voting-law restriction, and in 2021 the GOP-appointed majority issued another sweeping ruling (in the Brnovich vs. Democratic National Committee case) severely weakening the remaining section of the Voting Rights Act that the Justice Department and civil rights advocates are using to challenge the state laws.
Operating on the same rules as the state legislatures (and effectively as the Supreme Court), Democrats in the House of Representatives last year passed two bills, on a party-line, majority-rule basis, to counter the GOP moves. Those bills, respectively, reversed the court’s decisions eviscerating the Voting Rights Act and established a new nationwide floor of voting rights, including access to mail and early voting and same-day voter registration.
But the refusal of Manchin and Sinema to exempt voting rights from the filibuster means that for the only time in this long sequence of events, Democrats must reach a bipartisan, supermajority of support to pass voter protections through the Senate and into law. The two senators’ decision means Congress can respond to the new voting restrictions only on the dim chance that Republicans in the Senate agree to override what Republicans in the states and on the Supreme Court have already done.
“If Congress is now going to be held hostage by the 60-vote supermajority requirement and be unable, even with a majority, to protect democratic rights in the states, then the national government has disarmed and leaves people unprotected from the abuses of partisans or White backlash in their own states,” says Waldman.
States’ divergence on rights widening
The voting rights struggle most clearly demonstrates the leverage of the new Republican axis. But the same pattern is coming into view on abortion. Republican-controlled states, including Alabama, Mississippi, Texas and Oklahoma, have passed a torrent of laws in recent years severely tightening or virtually eliminating access to abortion, typically over preponderant opposition from Democratic legislators. Courts have blocked most of those laws from taking effect because they violate the Supreme Court’s 1973 Roe v. Wade ruling, which established a nationwide right to abortion. In other cases, the laws are “triggered” to go into effect only if the high court overturns Roe. That day may be coming: In oral arguments during a challenge to the Mississippi law banning abortion after 15 weeks (as well as the decision not to temporarily block an even more restrictive Texas statute), the GOP-appointed Supreme Court majority has signaled it may overturn or severely weaken Roe in a decision next summer. The odds are near zero that any of the three Democratic-appointed justices would join in such a ruling.
The House of Representatives has already responded: Again on a majority-rule, near party-line basis, the Democratic majority approved legislation last September codifying a national right to abortion. But because of the filibuster rule that requires a bipartisan supermajority, that legislation is doomed in the Senate.
Multiple Republican-controlled states also are squeezing First Amendment rights by limiting how public school teachers can talk about race. The filibuster likely precludes any federal legislative pushback against those moves, and it’s unclear whether this Supreme Court will constrain those state laws (though some civil rights advocates hope that libertarian impulses might lead at least some GOP-appointed justices toward opposition). Likewise, multiple red states have passed laws targeting transgender young people (for instance, by barring them from competing in high school sports). The House, on another majority-rule, near-party line vote, last year passed legislation that would override those laws, but that bill too is blocked by the Senate filibuster.
Again it’s unclear whether this Supreme Court will intervene against the states in the lawsuits brought by LGBTQ rights groups; to the contrary, some legal analysts believe that if the GOP-appointed court majority overturns Roe, it might eventually use similar logic to reverse the 2015 Obergefell decision establishing the national right to same-sex marriage. (If that happens, it would allow red states to again bar same-sex unions, while the filibuster would almost certainly prevent Congress, as on abortion, from restoring the national right through legislation.)
All of this points toward a widening divergence in the basic rights available in red and blue states. That’s an America that looks more like it did before Congress and the Earl Warren-led Supreme Court engineered the “rights revolution” of the 1960s and 1970s, which established a broad array of common national rights in area from voting to abortion to discrimination based on race or gender.
Republican elected officials and conservative thinkers who support these trends argue that permitting states more freedom to diverge on questions such as abortion and voting rights reduces political tensions by allowing policies to reflect local sentiments. And they uniformly insist that the voting laws states are passing will merely buttress election integrity without curtailing citizens’ right to vote. Reversing the accusation that the Republican axis is gutting long-standing national rights, many conservatives argue it is Democrats who are seeking to undermine political institutions by eliminating the filibuster or enlarging the Supreme Court, two ideas that have surfaced as possible responses to the GOP axis.
“There is almost no appetite on the right for changing the fundamental institutions of our democracy,” conservative policy analyst John C. Goodman, a senior fellow at the right-leaning Independent Institute, wrote earlier this month. “But there is on the left.”
But civil rights advocates almost uniformly consider the new state voting laws harmful to minority participation. And they argue that state leeway should end at the point where it endangers basic civil rights and liberties, like voting or abortion access.
“These are constitutional rights, and your ability to enjoy those constitutional rights should not depend on what state you live in,” says Deborah Archer, a New York University law professor who’s the president of the American Civil Liberties Union. “Whether or not your children can attend integrated schools, whether or not you enjoy full First Amendment rights, your right to vote … access to your right to choose … should not depend on whether you are in Texas or New York, whether you are in Georgia or in California.”
When it comes to how far the GOP-appointed Supreme Court majority may go in allowing red states to roll back previously shared national rights, she adds, “I don’t think we have seen the line, and I think that’s really scary.”
To come: Backlash or a new tilt?
Compounding the frustration of Democrats and civil rights advocates is how this axis is rooted in the structural imbalances of our political system that amplify the influence of the smaller, conservative, preponderantly White states least touched by demographic and cultural change. Five of the six Republican-appointed Supreme Court justices were chosen by presidents who had lost the national popular vote in their first races but won Electoral College majorities: George W. Bush and Donald Trump. (Clarence Thomas, appointed by George H.W. Bush, is the only exception).
Four of the six were approved by senators who represent less than half of the US population (if you assign half of each state’s population to each senator). Roberts is the only one of the six GOP-appointed justices who received at least 60 Senate votes, the threshold still required under the filibuster to preserve any of the national rights that court majority is targeting. (Senate Democrats did not filibuster Thomas or Roberts and mounted only a half-hearted, easily overcome filibuster against Samuel Alito. The GOP Senate majority eliminated the filibuster for Supreme Court nominees in 2017, which prevented Democrats from applying the tool against Trump’s three appointees.)
Brian Fallon, a former senior Democratic Senate aide who’s the executive director of Demand Justice, a group that advocates for enlarging the Supreme Court and reducing the influence of federal courts, says Democrats share the blame for the success of the GOP axis by failing to place sufficient priority on federal judicial appointments or winning state legislative races. But he also argues that Republicans are seeking to roll back rights in areas such as voting and abortion through the combination of federal court and state legislative action because they don’t want to trigger highly visible nationwide debates. “Their best strategy is to strangle the elected branches of the federal government and to work their will through federal judiciary … and state legislatures, where they have eaten our lunch in the last several years,” he says.
Fallon says he believes a strategy centered on Supreme Court rulings from justices appointed and confirmed by Republicans who did not receive support from public majorities carries the seeds of its own destruction. That approach, he argues, will eventually produce a backlash by undoing rights with broad popular support — for instance, the right to abortion. “I do not think that strategy can long endure,” he says. “When a critical mass of rulings emanate from that court that is the product of all those counter-majoritarian steps upon each other, I think you end up with front-page news that shocks the public.”
A backlash is one possibility. But others point to the prospect that this GOP revolution from below could change the political equation enough to shift the national balance of power.
The GOP-appointed Supreme Court majority and Republican senators wielding the filibuster are, in effect, providing air cover for the ground offensive from Republican legislatures and governors to tighten voting restrictions, impose extreme partisan gerrymanders and enhance partisan influence over the counting of ballots. The combined effect may be not only to entrench GOP control over those state governments but also to reduce Democrats’ chances of winning those states in presidential or congressional elections.
If Republicans can tilt the playing field that way in enough states, they will increase their odds of controlling the White House and Congress, with or without majority support. So long as Manchin and Sinema uphold the filibuster, they are blocking Democrats’ best, and maybe only, chance to disrupt the Republicans’ tightening red state/Supreme Court/Senate axis — and to resist the political system’s growing bent toward minority rule.
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