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Democracy vs. “democracy”

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The fight in the Senate over H.R. 1, the For The People Act passed in the House, is heating up as Democrats and the Biden administration prepare to go bare-knuckles over how and whether Americans can vote in 2022. The bill would restructure how voting in federal elections is conducted in the U.S. of A. Most importantly, it would restore Section 5 of the 1965 Voting Rights Act eviscerated by the U.S. Supreme Court’s 2013 Shelby decision. Among its other changes, the bill (Vox):

  • Creates new national automatic voter registration that asks voters to opt out rather than opt in, ensuring more people will be signed up to vote. Requires chief state election officials to automatically register eligible unregistered citizens.
  • Requires each state to put online options for voter registration, correction, cancellation, or designating party affiliation.
  • Requires at least 15 consecutive days of early voting for federal elections; early voting sites would be open for at least 10 hours per day. The bill also prohibits states from restricting a person’s ability to vote by mail, and requires states to prepay postage on return envelopes for mail-in voting.
  • Establish independent redistricting commissions in states as a way to draw new congressional districts and end partisan gerrymandering in federal elections.
  • Prohibits voter roll purging and bans the use of non-forwardable mail being used as a way to remove voters from rolls.
  • Restores voting rights to people convicted of felonies who have completed their sentences; however, the bill doesn’t restore rights to felons currently serving sentences in a correctional facility.

Sahil Kapur and Jane C. Timm at NBC News explain that the bill would also make Election Day a national holiday:

The divisions between the two parties are sharp. President Joe Biden and Democrats say federal intervention is needed to stop Republicans from reviving racist Jim Crow-style restrictions that make it harder for minorities to vote. Republicans say Democrats are executing a power grab to remove necessary protections on the voting process and usurp authority from states.

Where they agree: This is about the future of democracy.

The problem is Democrats and Republicans have vastly different definitions for the word, one expansive and the other restrictive. As Donald Trump believes and the Jan. 6 insurrection illustrates, the Republican definition is “heads we win, tails you lose.” As movement conservatism godfather, Paul Weyrich, once observed, Republican “leverage in the elections quite candidly goes up as the voting populace goes down.” Republicans in state after state mean to shrink the pool of eligible voters to improve their chances of winning elections. This they call election integrity.

Senate Minority Leader Mitch McConnell (R-Ky.) decried H.R. 1 as “a grab-bag of changes” that includes more than voting rights. Republicans are digging in and Democrats are strategizing on how to pass their legislation through the Senate with only 50 votes against a Republican filibuster:

“The choice is the republic or the filibuster — there is no third option,” said Ezra Levin, co-founder of Indivisible, a national network of progressive activists. “We are at an inflection point in American history. Down one path is a Trump-inspired white plutocracy, and down the other is a representative democracy.”

Levin said he will consider it a “personal, organizational and movement-wide failure of historic, catastrophic proportions” if the voting rights bills, along with making Washington, D.C., a state, don’t pass this year.

But at nearly 800 pages, the bill in present form may be too cumbersome. Rick Hasen (UC Irvine and Election Law Blog) argues a narrower, more-focused bill has a better chance of success than an all-eggs-in-one-basket approach. Furthermore, Hasen writes:

Some parts of it could well be found unconstitutional if it passed, such as a provision requiring states to re-enfranchise all people convicted of felonies who are not currently serving time in a correctional institution. Courts could potentially find that provision interferes with states’ constitutional right to set qualifications for voters.

But potential unconstitutionality of some provisions is not the main problem with H.R. 1. Instead, the problem is that the bill contains a wish list of progressive proposals that make it unlikely to survive debate in the Senate. In addition to sensible provisions protecting voting rights, the bill also contains controversial rules on campaign financing, including the creation of a public financing program for congressional candidates, new ethics rules for the Supreme Court, and a requirement that most candidates for president and vice president publicly disclose their tax returns.

Democrats’ all-or-nothing position on the bill may simply be an opening bid. If so, it means they have not begun by negotiating with themselves before bringing the legislation to the floor as they did with the Affordable Care Act.

Republicans see the demographic handwriting on the wall, refuse to moderate their stances to attract more voters, and are desperate to cherry-pick who can vote. Preserving democracy is not their goal. Preserving minority-rule for themselves is.

Sen. John Cornyn, R-Texas, said of H.R. 1, “It’s an existential threat, I think, to our election system and to our democracy.” Staunchly opposed to the bill, Cornyn said, “Basically what they want to do is install a permanent partisan advantage and run all the elections out of Washington, D.C., and eliminate ballot integrity measures like voter ID.”

Translation: Democrats seek to extend the franchise and neutralize the structural advantages small states (dominated by Republicans) have enjoyed since the nation’s founding under the Constitution’s system for allocating senators and drawing congressional districts.

Internal migration to southern states such as Georgia is changing their political makeup permanently. Republican’s grip on those states and the country is loosening and there is nothing they can do to stop it. Not that they won’t try.

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