Warren’s brilliant plan to neutralize Republican voter suppression

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Senator and presidential candidate Elizabeth Warren (D-MA) released a “plan to strengthen our democracy” on Tuesday.

Much of Warren’s plan tracks the For the People Act of 2019, the legislation commonly referred to as “H.R. 1,” which House Democrats passed last March. What sets Warren’s plan apart is the sophisticated mechanisms she uses to insulate voting reforms from state officials hostile to voting rights.

Warren’s plan is not a perfect solution to the problem of anti-democratic state officials, and, like nearly all laws, it is defenseless against a rogue Supreme Court that is determined to give an electoral advantage to Republicans. Nevertheless, it’s a thoughtful effort at least, to mitigate red states’ ability to sabotage pro-democratic reforms.

The Warren plan includes many of the same reforms included in H.R. 1, a bill which represents the consensus among congressional Democrats and voting rights groups. Like H.R. 1, Warren pushes for enhanced election security, automatic voter registration, early voting at least 15 days before the election, and independent redistricting commissions to thwart gerrymandering, among other things.

Yet, what makes Warren’s plan interesting is the safeguards she layers onto H.R. 1 in order to work around a constitutional quirk that limits Congress’ power to regulate elections.

The Constitution permits states to determine the “times, places and manner of holding elections for Senators and Representatives,” but it also permits Congress to “at any time by law make or alter such regulations, except as to the places of choosing Senators.” Thus, for congressional elections, Congress has virtually unlimited power to tell states how to run elections, so long as Congress does not violate some other provision of the Constitution.

For state elections, however, things are a bit trickier. Some provisions of the Constitution, like the Fifteenth Amendment, permit Congress to enact laws that prevent certain kinds of voting discrimination. But the Supreme Court’s Republican majority reads the Fifteenth Amendment so narrowly that lawmakers cannot be confident that this majority would uphold significant reforms regulating state elections directly.

That potentially creates a problem for election reformers. Though Congress can order the states to comply with certain voting rights protections in congressional elections, the state could conceivably impose stricter requirements to vote in state-level races. H.R. 1, it is worth noting, only applies many of its reforms to federal elections.

Most states wouldn’t want to deal with the administrative burden of, say, having one set of voter rolls for people who can vote in state elections and another for people who can only vote in federal elections. But if you are a Republican state governor staring down the barrel of a tight reelection fight, such a complicated mechanism could be tempting.

Warren seeks to get around this problem in two ways. The first is that, while the Constitution may not give Congress sweeping power to regulate state elections, it does permit the federal government to offer conditional grants to states. That is, Congress can offer the states a chunk of money, but only if the states comply with a new set of election rules.

So Warren’s plan “will pay the entirety of a state’s election administration costs, as long as the state meets federal standards in its state and local elections and works to make voting more convenient.” States can refuse to take this money, but cold hard cash is a strong incentive for them to play ball. Moreover, “states that achieve high percentage voter turnout, including across racial, gender, and age groups, will be awarded additional bonus payments.”

And Warren also has a plan to bypass state officials who are determined to make it harder to vote. “If a state does not participate in the federal-state partnership,” she writes, “but a local jurisdiction within the state wishes to do so, the local jurisdiction can work with the federal government to create a local implementation plan and it will get access to federal funds to cover its election administration costs.”

Indeed, the mere possibility of local implementation plans may be enough to convince red state governments to play ball. If the state of, say, Mississippi, refuses to comply with federal standards, city and county governments within Mississippi may still decide to comply. Localities that do comply are likely to have higher voter turnout. And since those localities are also more likely to be dominated by Democrats, Republican officials may realize that it is in their interest to implement turnout-enhancing reforms statewide.

Having praised Warren’s plan, it’s worth making two criticisms here. The first is that the words “Senate” and “statehood” do not appear in the plan.

The single biggest threat to democracy in the United States is Senate malapportionment. By 2040, according to a University of Virginia projection, half the country will live in just eight states. That’s 16 senators for half the population and 84 for the other half. In a nation where partisanship correlates closely with population density, that means that the Senate is also an existential threat to the Democratic Party.

Any serious plan to fix American democracy, in other words, must include a proposal to admit new states (and, most likely, to chop up old states) in order to mitigate malapportionment.

The second criticism is that no matter how well-designed Warren’s plan may be, it is doomed if the Supreme Court’s Republican majority is determined to strike it down by any means necessary. To save democracy, in other words, the next president may need a plan to neutralize the Supreme Court.


Reposted from ThinkProgress

Ian Millhiser is a Senior Constitutional Policy Analyst at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox News and many radio shows.

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