The Washington PostDemocracy Dies in Darkness

Opinion Just how imperiled is America’s democracy? A Q&A with the Brennan Center’s Michael Waldman.

Protesters loyal to President Donald Trump storm the Capitol on Jan. 6, 2021. (John Minchillo/AP)

Michael Waldman heads the Brennan Center for Justice, one of the nation’s leading research and advocacy groups on voting and civil rights, located at New York University’s School of Law. He recently re-released his 2016 book, “The Fight to Vote,” with additional material devoted to the 2020 election.

I asked him about the current threats to democracy and the dangers that lie ahead. Here are excerpts from our discussion, edited for clarity and style:

Jennifer Rubin: Republicans claim Democrats are trying to “nationalize” elections. Constitutionally and historically speaking, is this off base?

Michael Waldman: In fact, it’s what the Constitution had in mind. States run elections, but Congress can override them and set national standards. James Madison insisted on the “Elections Clause” because he was convinced state legislatures were corrupt, that they would be captured by “factions” (in current terms, “parties”), and that they would engage in what we would call “voter suppression” and “gerrymandering.” (They didn’t call it gerrymandering at the time, but that’s what they were talking about.) Madison told the delegates: “It was impossible to foresee all the abuses that might be made. … Whenever the State Legislatures had a favorite measure to carry, they would take care so to mold their regulations as to favor the candidates they wished to succeed.”

The Supreme Court has repeatedly upheld the federal government’s authority. In 2019, Chief Justice John G. Roberts Jr. even pointed to the recently debated Senate reform bill as proof that “the Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause.”

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Throughout history, the federal government has exerted that power. Setting Election Day; requiring individual congressional districts rather than at-large elections; the 15th Amendment; the Voting Rights Act; the National Voter Registration Act, among many others. Sometimes, national action is the only solution when states abuse the rights of their own people. So it is today.

Rubin: Is there an absolute “right to vote” in the Constitution? Do we need an additional amendment?

Waldman: It’s true the original 1787 Constitution did not recognize that right. Indeed, at the time, only White men who owned property could vote. But five amendments since then have explicitly enshrined “the right to vote.” In that way, it really is in the Constitution, and the challenge is to protect and enforce it. Those who back a constitutional amendment say it would give a clear command that could override bad or racist laws. This Supreme Court, after all, has never struck down a restrictive state voting law. An amendment is hardly the end, though; it would still ultimately be enforced by those judges.

The presidential vote is more muddled. The Constitution gives the state legislatures the ultimate power to decide how electors are chosen. The Florida legislature might have even tried to intervene for George W. Bush in 2000, if the Supreme Court had not. Certainly, Donald Trump and his coup co-conspirators pushed legislators to override the voters. That would be appalling. Even here, democracy depends on the voters having the final say: The Supreme Court confirmed in 2020 that once a legislature has decided that voters choose the winner, it has no role after that.

Rubin: Federal voting reform is stymied for now, but what about the states?

Waldman: A battle is raging in state capitols. As we know, last year, 19 states, driven by Trump’s “big lie,” passed 34 new laws to make it harder to vote — laws that targeted Black, Latino, Asian and Native voters. More such laws will come this year. These laws were often softened by public outcry, media focus and pushback from the business community, among others. When the Texas Democrats bolted the state last year, they drew publicity and actually stopped some of the worst restrictions.

State courts offer another possible place to fight. The U.S. Supreme Court has not struck down a single restrictive state voting law in the past decade. But every state constitution except one contains an explicit protection of the right to vote, and state judges may be more responsive, in part, because they are often elected. In Ohio, for example, the state Supreme Court struck down the gerrymandered maps that Republicans were pushing.

There are chances to push for affirmative reforms, too. Redistricting reform, automatic voter registration, campaign finance reform and an end to felony disenfranchisement — all in the Freedom to Vote Act now filibustered in the Senate — passed through state ballot measures in recent years. Sometimes, the best way to respond to attacks on democracy is to strengthen democracy.

Rubin: Does 2020′s record turnout bode well for democracy?

Waldman: I hope so. 2020 was a civic miracle. Despite the pandemic, we saw the highest turnout [rate] since 1900. That required a surge of engagement — by election officials of both parties, by voting rights groups, by athletes, by business (which provided hundreds of thousands of poll workers, made arenas and big box stores available as polling sites, and helped fund the election). We should all celebrate it. Instead, of course, one response has been Trump’s “big lie,” and all that flows from it.

Rubin: Give us the worst-case scenario for the 2024 presidential election.

Waldman: Every day, we learn more and more that Trump really did try to overthrow American democracy. His coup attempt was chaotic, clown-like. But there’s no reason to think the next one will be the same. Now, Trump’s allies systematically seek to strip away the obstacles to stealing the next election. It won’t be Rudy Giuliani, with hair dye pouring down through his flop sweat, but quieter and more effective.

So new alignments are forming. For the first time, a national leader argues that our democracy is fake. Over a year after the election, 70 percent of Republicans think Trump really won. That’s new and scary. But something else — something more encouraging — is also happening. A democracy movement, galvanized by Trump’s lies, mobilized around the Freedom to Vote Act and John Lewis Voting Rights Advancement bill. It’s the biggest push for voting rights in half a century — a coalition of breadth, diversity and depth. Perhaps the story of the next two years will be the rising righteous anger of this movement fighting for democracy.

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