Tucked inside that bill are provisions that take direct aim at minority rule, but not in an obvious way. We often talk about individual features of our system — voter suppression, extreme gerrymanders, the electoral college — as anti-majoritarian. But we don’t talk enough about how various features interlock to create anti-majoritarian structures that are more impregnable than the sum of their parts.
The Lewis act’s key provisions restore federal preclearance requirements for changes in voting rules, and make it easier to challenge discriminatory voter suppression measures, both responses to the Supreme Court’s gutting of the Voting Rights Act, in 2013 and this year.
But the act also seeks to limit the court’s ability to uphold measures making voting harder and to strike down measures making voting easier. It requires the court, in hearing cases on election rules, to put greater weight on the “public’s interest in expanding access to the right to the vote.”
And it bars the court from overturning lower court rulings that expand voting access unless it determines that this places burdens on the public interest that “substantially outweigh” its interest in expanding that voting access.
Aiming at the edifice
As Slate’s Mark Joseph Stern explains, such reforms would make it harder for the court to do things like, say, overturn lower court decisions that strike down restrictive voting rules, or invalidate the ballots of voters (ones who voted in accordance with lower court decisions) after an election.
Such provisions “modify the courts rules, weakening its authority to intervene in elections, and diminishing its power to side against voting rights in cases when it does step in,” Stern writes.
Or as Ian Millhiser puts it, the bill represent a recognition that “the greatest threat to voting rights” may be “the Supreme Court.”
I’d add another dimension to this. The bill reflects recognition of an important thought: that minority rule depends on the interlocking of various features in our system, which in turn calls for — and potentially justifies — congressional action against it.
In short, in passing this bill, Democrats are taking aim at a key structural element in the edifice of minority rule. This doesn’t just involve using congressional power to defend and expand voting rights and access. It also uses it to shape how courts can rule on them.
‘Fine-tuning judicial power’
Samuel Moyn, a Yale law professor and longtime advocate for court reform, describes this as a mode of “fine tuning judicial power” that’s perfectly within Congress’s authority.
“It is essential that H.R. 4 does double duty as an experiment in court reform,” Moyn told me. He said this constitutes Congress “clarifying how courts must enforce federal voting rights” even as Republicans are actively relying on the courts to limit voting access as enforcers of “minority rule.”
“Passing a pro-democracy law and protecting it from a non-democratic judiciary are two sides of the same coin,” Moyn continued.
What’s also at stake here is the need for a real public debate about the essential role that court reform can play in protecting and expanding democracy. The public associates this only with “court packing," but that should change.
“By undertaking court reform alongside voting rights,” Moyn tells me, “it opens a much needed debate on how to begin to bring the country out of its minority-rule syndrome.”
The big picture is ugly
The big picture here looks like this. GOP state legislatures are busy passing measures everywhere that make it harder to vote in ways that target Democratic constituencies. Meanwhile, they are gearing up for extreme gerrymanders that will insulate them from popular accountability and potentially enable Republicans to win the House, relative to 2020’s performance, based on the strength of those gerrymanders alone.
Congressional efforts to do anything about those things are being blocked not by lawmakers representing a majority of U.S. voters but by the filibuster, which requires a supermajority to pass such efforts out of the Senate.
And the Supreme Court is upholding and sustaining various aspects of that ongoing entrenchment of minority rule — which in turn is partly enabled by the fact that five justices were appointed by GOP presidents who first ascended to power despite losing the national popular vote.
It’s often said that this is how the system is designed. But the system also allows for exactly the sort of reforms that might do something about this state of affairs.
Yet this points back to the problem: We’re caught in a doom loop that effectively prevents that from happening. A recent report by the reform group Take Back the Court and the Equal Justice Society demonstrated that even if Congress passed reforms limiting such antimajoritarian tactics in the states, legal doctrines privileged by the Supreme Court’s conservatives suggest it would strike many of them down.
Indeed, here’s something else that perfectly captures that reality: This new bill that just passed the House almost certainly won’t become law because of — yup — the anti-democratic filibuster, as long as Senate Democrats refuse to reform or end it.