Georgia, Voting Rights, and the Second Great Disenfranchisement in America

 

            Georgia’s decision to restrict voting rights in partisan retaliation for Democrats flipping the state

should come as no surprise.  It is a continuation of a nearly generation long battle that is part of the Second Great Disenfranchisement in American history.  Like the first which occurred after Reconstruction ended in 1877, this one too is both partisan and aimed at people of color, especially at a time when the latter are about to take political control.

        Across Europe and the United States, the 1800s was the century of the battle for universal suffrage.  Democratic movements pushed for everyone to get the right to vote, including women, the indigent, and people of color. While the battle for universal suffrage began in the nineteenth century, apparent victory did not occur until the twentieth century.  In the United States, by the early 1970s federal laws and constitutional amendments achieved nearly universal suffrage, and enforcement of the 1965 Voting Rights Act significantly overcame the racial barriers that many states still maintained to prevent people of color from voting.

            But while the arc of American history has been an expansion of voting rights—an effort former Supreme Court Justice Thurgood Marshall referred to as expanding who was included in the promise of the Constitution’s “We the people”—there has also been a counter effort to suppress voting rights.  After the Civil War, the Republican Party embraced voting rights for the newly freed male slaves, while the Democratic Party opposed it.  When the 1876 disputed presidential election, Democrats conceded the election to the Republicans on condition that Reconstruction end.  This ushered in a 100-year-long Jim Crow era where literacy tests, grandfather laws, poll taxes, felon disenfranchisements, and outright lynching suppressed voting rights for African Americans.

            The first Great Disenfranchisement ended in the 1960s with 1964 Civil Rights Act and the 1965 Voting Rights Act and perhaps the 1993 Motor Voter Act.   But with universal franchise within grasp, the roots of the Second Great Disenfranchisement began.  It started with Barry Goldwater, George Wallace, and Richard Nixon defending states rights in the 1960s.  It continued into the 1990s with Republicans claiming Motor Voter would yield fraud.  And then post Florida 2000 and the disputed election between George Bush and Al Gore, the language turned to claims of voter fraud and the need to fix it via voter identification laws. 

Since then, there has been a generation long effort by Republicans to suppress voting rights, using the false claim of voter fraud as a pretext.  Now voter fraud has morphed into “stolen election” after Donald Trump lost the 2020 election and Joe Biden and the Democrats flipped Georgia, and with that, the control of the presidency and the Senate.  As the Brennan Center reports, 43 states have introduced more than 250 laws aimed at suppressing voting rights.   There is still no basis for the stolen election thesis,  as 60+  court cases after the 2020 elections showed, and according to Sidney Powell, Trump’s attorney, who, in response  to lawsuits challenging her claims of fraud, asserted that no reasonable  person would believe such assertions.  And with a conservative Supreme Court already having gutted the Voting Rights Act and poised to let states restrict franchise, the Second Great Disenfranchisement is in full bloom.  Georgia is at the center of the fight.

Georgia’s flip to voting for the Democratic Party presidential and US Senate candidates came as a surprise to many.  On one level perhaps its flipping vindicates Chief Justice Roberts’ majority opinion in Shelby County v. Holder when he pointed to statistics indicating parity in voter registration for Blacks and Whites across the South, insinuating that perhaps the VRA might no longer be needed.  Maybe Georgia in 2020 was proof that Jim Crow and voter suppression were left behind, and that the electoral college was no longer anti-majoritarian institution.

            Georgia was a surprise, but it was also a product of a perfect storm that may not be repeatable or serve as a harbinger for the rest of the South.  What happened in 2020 was a product of a concerted multiyear organizing strategy by Democrats and Stacy Abrams.  It also benefitted from a large Black voting population, a state with significant in-migration from the north to Atlanta, and college educated White suburban voters who disliked the incumbent president Donald Trump for among other things, his mishandling of the pandemic.

            Consider first the racial makeup of Georgia.  According to the 2019 Census Bureau American Community Survey population estimates, Georgia is 57.75% White, 42.25% non-White, with 31.94% African American.  Of the 11 states that made up the Confederacy, no other state has a high percentage of its population non-White.  The only state coming close is Mississippi at 41.97%. The latter, however, does not have as has a high percentage of the college educated as Georgia.  In 2020, 40% of the Georgia voters had a college education, with 14% of persons of color having a college degree.  Compare this to Mississippi where 30% of the voters had a college degree and approximately 8% of non-whites had college degrees.  In Georgia 61% of the voters according to exit polls were White, whereas in Mississippi it was 69%.   Finally, in Georgia 69% of Whites voters supported Trump and 88% of Blacks supported Biden, while in Mississippi 81% of White voters supported Trump while 90% non-White voter for Biden.

            What we learn from this brief comparison is that while racially polarized voting continues to exist in both states, the presence of more voters with a college degree somewhat mediated the partisan split in Georgia but not so much in Mississippi.  Nationally we know that in 2020 college-educated voters were much more likely to support Biden, confirming that Georgia voting patterns followed that trend.  Yet Georgia’s unique combination of racial demographics and education distinguished it from Mississippi and perhaps other former Confederacy states in setting the stage for the 2020 election results.

Given the above, one should not necessarily expect that the electoral college vote in Georgia in 2024 will produce similar results and perhaps protect minority rights.  And all of that was before the effort to suppress voting rights in that state.  Georgi flipped in part because people of color voted.  Suppress them in that state and a few others and the election in 2020 could have been different.  In fact, while Joe Biden won the presidency in 2020 by nearly seven million popular votes, he only won Arizona, Georgia, and Wisconsin by 19,457, 11,779, and 20,682 votes respectively, or collectively by 42,918 votes.  Suppress 43,000 votes and Trump would have won the electoral college again in 2020.

Elections have consequences.  That is why voter suppression is so important.  We are in the middle of the Second Great Disenfranchisement and 2021 will tell us whether the battle to protect voting rights will be won or lost.

The US Senate Filibuster: It does not Produce Compromise, It Does not Protect Minority Rights

 

The debate over repealing the US Senate filibuster is reaching a partisan fever pitch.  Democrats are

worried that after passing the $1.9 trillion stimulus legislation on a straight party-line vote by using the reconciliation bill exception they will not be able to move their agenda unless the filibuster is repealed.  Republicans including Mitch McConnell vows “scorched Earth” if repealed, along with a   warning that of Democrats do this they will regret it in the future.

            Central to the argument for preserving the filibuster are two assertions.  One is that it is needed to protect minority rights.  Two, the filibuster encourages compromise.  The reality is, neither of these claims are true and in fact its repeal may promote both goals better than retaining it.

            The filibuster rule is a product of slavery politics, as was true of the electoral college.  If the electoral college’s goal was to protect the slave states from being outvoted in presidential selection by the free states, purpose of the filibuster was to do the same.  The Senate with its equal representation already gave the South a bonus in representation.  But what the filibuster did was to allow one senator the effective ability to shut down the action of the chamber to prevent it from passing legislation hostile to the South.  John C. Calhoun, a Senator from South Carolina in the antebellum South, used the tool effectively to block critical legislation.  But he is also famous for his role in the nullification crisis where he asserted states had a right to veto or nullify federal legislation.  His book A Disquisition on Government, advocated a theory of concurrent majority which would only permit legislation to pass if all classes, interests, groups, or states which had an interest in it supported it.  Effectively, the filibuster went hand-in-hand with his theory of government to support states’ rights and protect a slave holding minority against majority rule.

            Throughout history the filibuster has more often than not been used to oppose legitimate rights than support it.  It was used to oppose civil rights legislation in the 1950s and 1960s.  While American liberal democracy is supposed to protect minority rights, it is also premised on majority rule and respect for letting the legislative process facilitate social and political change and not inhibit it.

            Arguably the filibuster might have made sense a half century ago when American politics, parties, and studies show Congress were less ideological and partisan than it is now.  Back then the non-ideological or coalitional nature of parties meant far less straight party line votes in Congress.  But all that has changed, and Congress is far more polarized now than before.  We know that the filibuster’s use has increased over time.  Evidence over a 50-year period reveals a hardening of partisanship in Congress The attached graph from US Senate data details the increase use of cloture (the tool to close filibusters) over time.  It demonstrates a clear pattern of increased use of the filibuster over time.

 

The filibuster has facilitated that.  One the filibuster encourages is not negotiation and compromise, but winner-take-all politics.  Its presence allows one senator or a minority to veto legislation instead of encouraging cooperation.  If the filibuster were repealed, dissenting senators would have more of an incentive to participate in forming the bill as opposed to being holdout and shutting down any action.

Moreover, if the filibuster were a tool encouraging compromise, 50 years of data would not produce data demonstrating the increased use of cloture over time.  A long-term trend of polarization should produce either no increase in its use, or alternatively its threatened use should reveal evidence of adopted bipartisan legislation over time.  In fact, the longer trend over the last 50 years reveals a steady decrease in the number of bills passed. 

From a statistical point of view, there is a connection between the numbers of bills passed and votes on cloture.   Correlating the two statistically, there is a strong negative -.66 relationship.  This means as the use of the filibuster has increased, the number of bills passed has decreased.  This is not  proof that the use of the filibuster has caused  a decrease in the number of bills passed, but it is powerful evidence in that direction.

 

 

 

 

Thus, the filibuster does not produce compromise and it does not encourage legislating.  Instead, what it has done is weaken Congress, making it a far less effective body than it once was.  This has produced two phenomena.  One, it has empowered by the President and the Supreme Court.  It has done that by forcing the president to govern by executive order and bypass Congress when it can.  It has also put the Supreme Court and the federal judiciary into a role of resolving disputes that it should best be addressed by the political process.  It thus also makes judicial confirmations far more important than they should be.

The second problem is that the filibuster precludes the type of negotiations that are needed to update and correct legislation.  There are a litany of laws, ranging from health care, elections, tax policy, labor relations, communications, and infrastructure that need fixes or updates.  The filibuster permits a minority or perhaps even a special interest to thwart needed policy change, thereby freezing innovation and necessary legislation for the public good.

            The filibuster never was good for American democracy and it is even worse now.  The supposed reasons for its continuance are merely myths that fail to sustain its existence, and which instead perpetuate or exacerbate political dysfunctionalism.