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.
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.
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?”
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
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?
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.