I suspect that some readers will disllike this post, but in the midst of a crisis over democracy, we all need to speak our minds. That is especially true for those of us who reject most of the propaganda now emanating from both sides of the political fence--and if you've been here long, you know that I count myself among those.
On the last day of its session, the Supreme Court upheld Arizona laws requiring particular procedures to vote. One threw out votes cast at the wrong precinct; another bans the collection of large numbers of mail in ballots by private parties. Virtually every red state is now passing such laws in response to controversies about the 2020 election, and the court system is evidently not going to overturn them. It was thirteen years ago that the court upheld voter ID requirements at the polls. Democrats up to and including President Biden call these laws "voter suppression" and compare them to other measures in effect during the Jim Crow era.
Let me say before going any further that Republican legislatures are also passing another kind of election law that does represent a serious and unprecedented threat to our democracy. These laws authorize state legislatures, most of which are now dominated by Republicans, to resolve disputes over election results, and thus, potentially, to declare Republicans winners on very dubious grounds. They are a real danger in purple states and must be fought in purple states. On the other hand, I simply do not believe that laws like the Arizona ones that the court just sustained really fit the definition of "voter suppression," and I think that the Democratic Party, rather than wring its collective hands and declare the death of democracy, should simply get to work on readily available means of counteracting them.
To Republicans, I suspect, the Democratic attitude seems to be that giving everyone the same right to vote, and the same access, is not enough: states must take affirmative action to make it easier for people to vote. That is what mail-in voting--a target of many of the new laws--does. It certainly seems to have worked very well last fall, and states seemed, in fact, to have devised excellent procedures to make sure that only valid votes were cast. Yet mass mail in voting--as opposed to absentee ballots for people who literally cannot be at the polls on election day--is a very recent innovation, one which we managed without for centuries. It did create significant vote-counting problems, since counting mail-ins didn't begin until the polls closed, delaying a final count in key states for many days. And whether or not mail-in voting and the private collection of votes actually led to fraud last year, it doesn't seem unreasonable to me, in these polarized times, to think that they might--on the Republican side, if not the Democratic. To put it another way, mass mail-in voting will inevitably create huge controversies and problems for as long as the nation remains as divided as it is today.
Among Democrats, I think, we are seeing the results of a strategy that they have pursued for about 70 years: the use of the federal court system to secure their objectives. The Supreme Court from the 1950s through the 1970s outlawed school segregation, banned school prayer, expanded the rights of defendants, legalized birth control and abortion, ordered all states to create legislative districts of equal populations, blessed affirmative action in college admissions, and legalized school busing for integration. More recently it legalized gay sex and gay marriage. Some of these decisions enjoyed majority support among the electorate, others did not. Many involved new interpretations of various parts of the Constitution, some more obvious than others. They had two unintended effects. First of all, these decisions mobilized certain constituencies such as white southerners and religious conservatives for the Republican Party. Secondly, they inspired a Republican counter-offensive designed to reverse many of these decisions by filling the Supreme Court and the other federal courts with conservative justices. What nine men and women could decide, another nine justices could overturn. We have now seen that happen with respect to gun rights, the Voting Rights Act, and many economic issues, and it may not be long before it happens with respect to abortion rights. The enormous power of the Supreme Court on highly sensitive political issues, in fact, has made judicial appointments the most important domestic presidential power, and a completely partisan issue.
One op-ed after another is now declaring that the Democrats have lost the Supreme Court as a means of "protecting" voting rights and stopping "voter suppression." I would argue, however, that the only votes that the Arizona laws "suppress" are those of people who couldn't be troubled to find out where their proper polling place was--not an unreasonable obligation, it seems to me, to place on adult citizens of a democracy. Truly disabled people, as far as I know, still have the right to vote from home. In short, the Democratic Party could respond to the curtailment of mail-in voting simply by making a more determined, well-organized effort to get its voters physically to the polls and procure them whatever identification they need. They should begin that effort now, in preparation for the 2022 elections, and if those elections reveal that some areas don't have enough polling places to accommodate their voters, there will be time to exert effective pressure to correct that before the critical year of 2024. Democrats must recognize that they will not be able to count on the Supreme Court to enact their agenda for the foreseeable future. That means they have to use other, more fundamental democratic tools, led by getting voters to the polls. That is not a challenge that any serious political party should be afraid to accept.