I doubted that Mitch McConnell could do it, but he did. With only a week remaining before Election Day, McConnell crammed through the confirmation of a sixth conservative justice to the U.S. Supreme Court. The people who tally such things reckon that Amy Coney Barrett is the first justice since 1869 to receive not a single vote from the minority party in the Senate.
It was a move of raw power. But it was also motivated by raw desperation.
Polls suggest Republicans are facing defeat in the 2020 races, and probably by big margins. Joe Biden and Donald Trump are neck and neck in Georgia and Texas, nobody’s previous idea of swing states. Republican senators are at risk not only in Maine and Colorado, but also in Iowa and even Kansas.
Republicans are in danger of losing something more than seats and chambers in 2020. They are in danger of losing an entire system of political control.
Measured by elections won and lost, the 2010s were the most conservative decade since the 1920s. At their zenith of power, in 2017–18, Republicans controlled the presidency, the Senate and House, 33 state governorships, and 67 of 99 state assemblies and senates. Not since the administrations of Presidents Calvin Coolidge and Herbert Hoover had the GOP so utterly dominated the machinery of government.
[U]nlike the days of Coolidge and Hoover, that dominance was highly artificial.
The Republican Party’s signature issue, under the Senate leadership of McConnell and the House leadership of Paul Ryan, was the repeal of the Affordable Care Act—a priority supported by only 35 percent of Americans in 2014 and opposed by 60 percent.
The McConnell-Ryan instinct to cut taxes for corporations and upper-income people was even more unpopular. In 2016, 67 percent of Americans favored some kind of additional tax on millionaires.
The party’s stance on social issues was likewise out of date. By 2011, more Americans favored than opposed same-sex marriage; support for same-sex marriage passed the 50 percent mark in 2014, and surpassed 60 percent in 2017.
The secret of Republican success in the 2010s was not votes, but maps and rules. Republicans scored their big comeback election in 2010, a census year. That allowed state-level Republicans to redraw maps in 2011 to favor their own party. That redrawing occurred at a time when a conservative federal judiciary was stepping back from oversight of voting processes.
A series of interlocking barriers to voter registration secured the Republican majority in Georgia in the squeaky-tight 2018 election. Georgia purges voters from its rolls if their name on the voting-registration list does not exactly match their name in other state records. Even a missing or excess hyphen can trigger a purge. Purged voters face strict deadlines to correct their status. Brian Kemp, the person in charge of the purge in the 2010s, ran for governor in 2018—and won in an election marked by widespread disqualification.
Success in 2010 allowed Republicans to claim a majority of their seats, even if they outright lost the vote.
In 2018, Democrats won 53 percent of the vote in Wisconsin’s state-assembly races. Thanks to the 2011 gerrymander, the Republicans won 63 of the 99 seats. Democrats likewise won 53 percent of the vote in Wisconsin’s U.S. House elections in 2018. Republicans took five of the eight seats.
In North Carolina, likewise, Democrats won more than half the vote in 2018—but only 55 of the 120 seats in the state House of Representatives.
The obstacles to voting devised and approved after 2013 helped elect Trump in 2016. Nationwide, African American turnout dropped 4.5 percent between 2012 and 2016—and by an astonishing 19 percent in ultra-gerrymandered Wisconsin.
The anti-Trump coalition is not only much larger than the pro-Trump coalition; it includes groups whose voting rights have historically been respected and protected. The innovations of the 2010s were sufficient to convert narrow minorities of votes into big majorities of seats. But as the pro-Trump minority dwindles, the old dark arts no longer suffice. The manipulation of the vote needed to save Trump becomes so extreme as to delegitimize itself.
On October 26, the Supreme Court stopped a federal-court order that extended the counting period for Wisconsin mail-in ballots to November 9, provided that the ballots were postmarked by November 3. Instead, Wisconsin voters who cast a timely ballot that is delivered late will see their votes disqualified.
Nor is the margin in 2020 likely to be so close as it was in 2000. The anti-Trump tide of 2020 has risen too high to be contained by the anti-majoritarian dikes built by gerrymandering and voter suppression in the 2010s. And if the math is overwhelming, Democrats will be positioned in the 2020s to do unto Republicans as Republicans did unto them in the 2010s: Redraw the maps and rewrite the rules.
Of course, it’s possible that when Democrats are doing the rewriting, the 6–3 conservative majority on the Supreme Court may suddenly rediscover the merits of federal judicial supervision of elections. But other voting changes may come, too, following a big-enough Democratic win.
Under Trump, the Department of Justice exited the business of voter protection. In four years, the department filed only one voting-rights case, concerning a school-board election in South Dakota. Under a President Biden, the department may remember that the Voting Rights Act of 1965 was only rolled back—not overturned—by the Roberts Court in 2013.
Meanwhile, a Democratic Congress may be inspired to revisit the Voting Rights Act and renew it. . . . so many new abuses have proliferated since 2013 that some kind of law is clearly needed.
So maybe reform begins—maybe an answer to the Barrett confirmation begins—by inscribing a new federal right to vote in the preamble to a new voting-rights act.
That’s not a constitutional amendment, but it would still be law—and law that seems necessary. We are hearing louder and louder voices on the Republican side questioning whether universal voting rights should even theoretically be guaranteed by the American constitutional system.
The central gambit of Trump-style authoritarianism is to claim legitimacy as a representative of “the people” while selectively disenfranchising and disempowering more and more of those people. The U.S. Constitution in many ways protects minorities against majorities. In the Trump era, we see instead politicians like Lee trying to pretend that minorities are majorities—and to grab the powers that legitimately belong to majorities away from them.
That’s the thing that needs to stop. That’s the thing that needs to change. And if Trump and his allies seem in these final days to act more frantically, more abusively, than usual, perhaps it is because they sense that the change is coming.
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