The first rule of business and marketing is that if you make it easy for folks to buy your product or engage with you, more people will do so. If you don’t want people to buy or use your product or service, on the other hand, just make them jump through hoops to complete the transaction and many won’t bother.
Republicans know this and have been applying it to voting for the better part of 50 years; recently they’ve turned it into a science.
Polling before the 2020 election in Texas, for example, showed that Joe Biden may beat Trump just as he did in so many other swing states across the country. From Trump failing there, the Republican elders in the state knew, it would be a short jump to flipping the entire state Blue, as happened with Michigan and Wisconsin.
Harris County — basically, solid-Blue Houston — laid out a plan to send out forms to all its 4.7 million residents to qualify for mail-in ballots (it was during the pandemic and before vaccines were available, after all).
Making it easier to vote, even during a pandemic, was definitely a bridge too far for the GOP: it sent (now impeached) Attorney General Ken Paxton into action.
Paxton immediately filed a lawsuit to stop the largest Democratic county in all of Texas from making voting convenient.
The state had spent years, after all, driving up the number of hours voters in Democratic parts of the state had to wait in line to cast a ballot and they weren’t about to let voting become painless.
A 2020 study by Northern Illinois University ranked Texas dead last in the nation in ease of voting, with the GOP having put into place a whole series of roadblocks designed to make it hard to register or even to vote during elections.
Paxton explained to Steve Bannon how well his lawsuit worked, bragging about forcing millions of Houstonians to take their lives in their hands if they really wanted to vote:
“If we’d lost Harris County—Trump won by 620,000 votes in Texas. Harris County mail-in ballots that they wanted to send out were 2.5 million,” Paxton told Steve Bannon in June, 2021 adding, “and we were able to stop every one of them.”
Texas’ 38 electoral votes were crucial to Trump even getting close to beating Biden, and if heavily Democratic Harris County/Houston had been able to easily vote in large numbers — it was even less safe to vote during a pandemic in a high-population-density city like Houston than in rural Texas — Republicans would be toast.
So he essentially denied them an opportunity to vote without exposing themselves to a deadly disease that ultimately killed over 1 million Americans.
“If you want to vote in Houston,” Paxton essentially said, “you’re going to have to expose yourself to Covid.”
As Paxton pointed out to Bannon:
“Had we not done that, we would have been in the very same situation — we would’ve been on Election Day, I was watching on election night and I knew, when I saw what was happening in these other states [that did expand mail-in voting for the pandemic], that that would’ve been Texas. We would’ve been in the same boat. We would’ve been one of those battleground states that they were counting votes in Harris County for three days and Donald Trump would’ve lost the election.”
This kind of massive and morally reprehensible voter suppression is pretty much limited to Republican-controlled states. It’s their latest strategy for holding power.
In contrast to Texas (60.4% voter turnout), I live in the easiest state in the union to vote: Oregon (75.5% voter turnout).
For over a quarter-century, voting in Oregon has been conducted entirely by mail. There are polling places in a few government buildings for disabled people, but otherwise everybody gets their ballot in the mail six weeks or so before the election and can send them back in an enclosed, postage-paid envelope right up to and including on election day.
From Minnesota (79.9% turnout) to Maryland (71.1% turnout), Democratic-controlled states that make it easy to vote and don’t throw up obstructions to voting by mail generally have the highest turnout.
Colorado, Oregon, Washington state, Hawaii, and Utah conduct their elections entirely by mail. By contrast, Oklahoma (54.9% turnout), Arkansas (56% turnout), West Virginia (57.5% turnout) and Tennessee (59.8% turnout) all throw up obstacles to registering to vote and voting by mail, and thus have low voter turnout.
In the week or three after our ballot arrives in the mail, Louise and I find the time to sit down at the dining room table with a laptop and look up all the obscure races that used to confound us when we had to vote in person and couldn’t bring anything into the booth with us.
Voting for judges, ballot measures, city and county races, etc. that once involved wild guesses are now thoughtful and specific: democracy in Oregon is strengthened by every voter having this same ability.
And throughout those two-plus decades that Oregonians have voted entirely by mail, there hasn’t been a single credible claim of consequential, election-altering voter fraud. It’s a phrase that only makes the local newspapers when Republicans in some other state are using it to justify blocking people from registering or voting.
Using Donald Trump’s “stolen election” lies as the basis for their actions, legislators in every Republican-controlled state in the nation have made it harder to vote over the past few years. States under Democratic control, on the other hand, have uniformly made it more convenient to vote.
With the exception of voting-obsessed first-in-the-nation New Hampshire, all of the top-10 voter turnout states are controlled by Democrats.
This is no way to run a democracy: the right to vote should not be a partisan issue.
America needs national voting standards, and the Guarantee Clause of the Constitution offers a basis for them. Section 4 of Article IV of the Constitution says:
“The United States shall guarantee to every State in this Union a Republican Form of Government….”
The Framers of the Constitution were clear about the importance of that clause; it was proposed by Pennsylvania’s James Wilson at the Constitutional Convention on July 18, 1787 and almost the entire day was spent debating it.
It’s an amazing sentence, that could be as sweeping in its power as the Commerce Clause (which JFK and LBJ used to force integration of the South) but has never been used in any meaningful way since it was written on that hot summer day in 1787.
The first time the “Guarantee Clause” came before the Supreme Court, slavery was the law of the land and Chief Justice Roger Taney, a slaveholder himself, was determined to keep it that way by bottling up the Clause’s power under the rubric of states’ rights.
Seven years before he tried to cement slavery into the law of every state in the union with his Dred Scott decision, Taney ruled in Luther v Borden (1849) that the Supreme Court should never be allowed to interfere with “state’s rights” on the basis of the Guarantee Clause.
“Under this article of the Constitution,” Taney wrote, “it rests with Congress to decide what government is the established one in a state.”
In other words, Taney said: The definition of what a ‘Republican Form of Government’ actually means isn’t yet laid out in the law or previous interpretations of the Constitution: therefore, it’s politics. And politics is the province of Congress, not the Supreme Court, which must limit itself to law.
On that foundation, later Supreme Courts repeated Taney’s pro-slavery “states’ rights” assertion that the question was political and not one to be decided by the courts: instead, it was up to the politicians in Congress if they were going to “guarantee a Republican Form of Government” to — or within — any particular state at any point in the future.
Taney was quoted “lucidly and cogently” in Pacific States Telephone & Telegraph v Oregon (1912) and Chief Justice John Roberts noted in 2019 that, “This Court has several times concluded that the Guarantee Clause does not provide the basis for a justiciable claim.”
Thus, to this day, it’s up to Congress, not the Court, to decide what a “Republican Form of Government” is and how Congress will guarantee it to and/or within every state.
Which brings us to today, and how Congress can use that clause to end partisan gerrymanders, dial back the power of money in politics, and guarantee the right of every American citizen to vote without undue difficulty.
Back in 2021, Joe Manchin and Lisa Murkowski joined with Senators Kaine, King, Merkley, Padilla, Tester, and Warnock to propose the Freedom To Vote Act.
The opening of the Act laid it’s goals out clearly:
“Congress also finds that it has both the authority and responsibility, as the legislative body for the United States, to fulfill the promise of article IV, section 4, of the Constitution, which states: ‘The United States shall guarantee to every State in this Union a “Republican Form of Government.”’” [emphasis added]
The proposed law even notes as justification for its existence how the Supreme Court has dropped — or laid down — the ball and therefore Congress must pick it up:
“Congress finds that its authority and responsibility to enforce the Guarantee Clause is clear given that Federal courts have not enforced this clause because they understood that its enforcement is committed to Congress by the Constitution.”
The Freedom To Vote Act would have ensured a “Republican Form of Government” in America and undone 50 years of obstacles Republicans have placed in front of voters. It included:
— Automatic voter registration and online registration for 16 year olds who will be 18 and thus eligible to vote in the next election
— Same day voter registration nationwide
— An end to partisan gerrymandering
— Limits on campaign contributions to a maximum of $10,000
— Criminalization of “pass through” groups to get around campaign finance laws
— A requirement by all corporations to fully and rapidly disclose all election spending over $10,000
— Making all websites (like Facebook) with more than 50 million users create a publicly available and publicly searchable archive of political ads
— Brings web-based election expenditures under the same disclosure rules as TV
— Makes it a federal crime to prevent a qualified person from registering to vote
— Requires 14 consecutive days for early voting, at least 10 hours each day
— Requires easy access to polling places for rural and college campus voters, and easy access to voting for all voters by public transportation
— Guarantees that all voters, nationwide, can vote by mail with no excuses necessary
— Guarantees that all voters can put themselves on a permanent vote-by-mail list and automatically receive a ballot in the mail
— Requires states to give voters the ability to track their mail-in ballots to be sure they’re counted or contest any challenge to their ballot
— Forbids states from forcing mail-in voters to have their ballots witnessed, notarized, or jump through other onerous hoops
— Requires secured and clearly labeled ballot drop boxes in all jurisdictions
— Requires the Post Office to process all ballots on the day they’re dropped off and without postage
— Requires states to keep voting lines shorter than 30 minutes in all cases and places
— Allows people waiting in line to vote to receive food or water from others
— Gives the right to vote to all felons who have served their sentences, in all states
— Prohibits voter “caging” where failure to return a postcard gets you purged
— Prohibits states from deleting voters from the rolls because they haven’t recently voted
— Empowers voters to sue in federal court any state or local officials who interfere with their right to vote
— Criminalizes intimidating, threatening, or coercing any election official or election worker
— Requires federal prosecution of anybody who tries to harm or undermine public officials by doxxing the personal information of an election worker or their immediate family
— Makes it a federal crime to publish or distribute false information about elections (when, where, etc.)
— Increases federal penalties for voter intimidation or otherwise interfering with our absolute right to vote
— Keeps partisan “poll watchers” at least 8 feet from voters in all circumstances, including while voting
— Requires paper ballots in all cases and all elections (there are exceptions for disabled voters)
— Requires post-election audits
— Provides criminal penalties for any candidate or campaign that fails to fully and immediately report any interactions with foreign governments
— Gives lower income individuals $25 they can use to give to candidates in $5 or more increments.
The legislation died from a Republican filibuster in the Senate in 2022, but if Democrats and Republicans who actually believe in democracy can gain a large enough majority in the upcoming elections this November and next, it should be pushed to the front of the line of new legislation.
Republicans know the only way they can continue to hold onto national power — and even keep their control over states like Texas, Georgia, and Florida — is by making it difficult to register and vote, by criminalizing voter registration drives, and by arresting and parading before TV cameras Black former felons who unwittingly voted.
There are limits to their cynical game, though, and the more clearly Americans realize how a process that should be painless and convenient, including vote-by-mail — as it is here in Oregon and in many other advanced democracies around the world — the sooner we can achieve that “more perfect union” the Founders set as our national aspiration.
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