The Washington PostDemocracy Dies in Darkness

Rand Paul offers an accidentally useful Jim Crow analogy in rationalizing his party’s illiberal shift

Sen. Rand Paul (R-Ky.) speaks to reporters at the U.S. Capitol on May 28. (Chip Somodevilla/Getty Images)
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One of the most important lessons for Americans to take from the 2020 presidential election is the extent to which the will of voters is subject to revision. There are always checks on the power of the electorate, of course, including judicial review of measures passed by legislatures or directly by the people. The past year, though, has shown how elected officials, generally overt partisans, can similarly redirect the will of voters.

An underrecognized example comes from Missouri. Last year, voters in the state approved an expansion of Medicaid eligibility by a six-point margin, with 82,000 more votes in support of the measure. The Republican-led legislature, though, simply declined to fund the proposal. Last month, Gov. Mike Parson (R) withdrew his framework for the expansion.

That decision probably will end up in court, but it’s instructive: Legislators disagreed with the majority of voters, so they stymied them.

There were no such complaints about the results in Missouri when Donald Trump defeated Joe Biden by nearly half a million votes there in November. Instead, such objections played out more forcefully elsewhere with Republican legislators and officials across the country trying earnestly to reject results in places that had preferred Biden, at times by fairly narrow margins.

It was an interesting evolution since 2016, when Trump’s popular-vote loss was waved away because of his victory in the electoral college vote. That victory was presented as a triumph of an equalizing system, a demonstration of How the System Was Meant to Work, leveling out the power of more populous states.

When Trump also lost the electoral vote four years later, the importance of the electoral college was revised somewhat. Now, instead of simply being a way to balance power, the electoral college was presented as a sort of fail-safe point at which state legislatures were empowered — if not mandated — to review how the public had voted. Despite the complete absence of any credible suggestion of rampant voter fraud, such claims were the predicate for those efforts to move electors from the political left to the political right. The electoral college gave Republicans a way to try to shift the results, an opportunity they embraced and, in fact, cast as some sort of solemn duty.

It’s the difference between winning a championship on a referee’s controversial decision and responding to losing a championship by demanding that the results be thrown out because of objections to the rule book that was used in the first place.

This effort culminated on Jan. 6, both in the illegal effort to physically block Congress from counting the cast electoral votes and in efforts by Congress to somehow force states to reconsider their decisions. More than half of the Republican caucus in the House joined more than half a dozen Republican senators to try to block the results in several states, even after a violent mob overran the Capitol.

In the months since, a number of states with Republican-led legislatures have passed efforts to make it easier in the future to reject the results of elections. In Georgia, where a handful of Republican officials including the secretary of state stood by the vote results despite pressure from their party to deliver a victory for Trump, the legislature gave itself more power to adjudicate election tallies. In Texas, legislators proposed an expansion of the allowable rationales for overturning an outcome. A law introduced in Arizona (where Biden also won) would make it easier to challenge the results of an election, including by giving state legislatures ways to simply reject the certified results.

What’s important about these shifts is that they seek to formalize and facilitate what we saw in the months after the 2020 election. It isn’t simply about trying to work the refs or about bending the rules to suit political ends. It’s about changing the rules at the outset to make a rejection of the popular will something that’s part of the legal process.

Those changes are occurring as part of other efforts to restrict voting in the same states, changes generally tied to the same unfounded fraud claims but that would often disproportionately affect Democratic voters. These changes generally have been rationalized using the same claims of rampant fraud and, at times, apparently been offered as ways to placate a Republican electorate convinced that such fraud occurred. At times, though, they have been rationalized in ways that more directly reflect their effects: as limiting the involvement of the public in decision-making.

Speaking to the New York Times about the Republican Party’s shifting tactical approach to election results, Sen. Rand Paul (R-Ky.) offered just such an argument.

“The idea of democracy and majority rule really is what goes against our history and what the country stands for,” Paul said. “The Jim Crow laws came out of democracy. That’s what you get when a majority ignores the rights of others.”

Jim Crow laws — laws instantiating public racial segregation and, importantly, curtailing the voting power of Black Americans — were, in fact, reflections of the rule of the majority. But that “majority” was not itself a reflection of the actual population, given the extent to which Blacks were excluded from participation. That's not to say that universal Black participation in voting in the Jim Crow South would have given them a majority, but it almost certainly would have reshaped power dynamics. Which, of course, was why Black voting was discouraged.

Paul’s argument is offered in service to the idea that there should be a check on the power of the population and he uses Jim Crow as an example of why that’s necessary. But Jim Crow actually serves as a more useful analogy to the way in which Republican officials are hoping to maintain power despite votes that might be cast in support of policies and candidates with whom they disagree.

Some have argued that the voting changes being proposed are themselves explicitly analogous to Jim Crow-era policies (given the undeniable racial overtones of some of the proposals, such as ones that sought to curtail Sunday voting). That’s not my point here. Instead, I’m pointing out that Jim Crow was a reflection of how those in power could work to maintain that power by changing the rules by creating laws that made it legal, if not moral, for them to hold power in the way that they wanted to.

We’re further down this path than we need to be. Paul’s argument that democracy “goes against our history” is … dubious, to put it generously. It’s an effort to give primacy to the check on power instead of the power itself. But because the Republican Party is increasingly feeling frustrated by the voters’ expressed will, it’s becoming more useful to argue that the will of the voters was never what the United States was about, really.

Consider Missouri state Rep. Justin Hill (R). Hill was part of the legislative majority that opposed expanding Medicaid in the state. He also introduced a measure in the legislature to challenge the results of the presidential election — not in Missouri but in six states that were the focus of the Trump campaign.

Oh, he also missed his own swearing-in in January because it fell on the 6th — and he was at the Capitol.

Hill in March rationalized his opposition to the Medicaid expansion in remarkable terms.

“Even though my constituents voted for this lie, I’m going to protect them,” he said. “I am proud to stand against the will of the people.”

According to Rand Paul, this is how the system is supposed to work.