With help from Manchin and Sinema, a Republican revolution from below is driving national

On Jan 18, 2022

Taken together, the offensive and defensive maneuvers by this axis amount to a revolution from below — a powerful attempt by Republican-controlled institutions to drive national policy even while Democrats hold the executive branch and Congress, the traditional levers of federal policy-making. By upholding the filibuster, Manchin and Sinema have effectively neutralized the most powerful tool Democrats have to push back: their capacity, through that unified control of the White House and Congress, to pass legislation setting new national standards in all the areas under siege from the Republican axis. And with history suggesting Democrats face a high risk of losing control of one, or both, congressional chambers in November, it may be years before they get another chance to respond.

The forceful move from the GOP-appointed Supreme Court majority and Republican red state officials to retrench previously guaranteed national rights “really magnifies the significance of this filibuster fight,” says Michael Waldman, president of the Brennan Center for Justice at New York University Law School, a nonpartisan group that advocates for voting rights. That struggle, he continues, represents “a major question of what the shape of the country is going to look like, because if Congress can’t act to protect voting rights, can’t act to protect abortion rights, unless there are 60 [Senate] votes as well as a president, then states have an open field to abuse the rights of their people and the extreme conservatives have nothing in their way.”

Battles over elections

The conflict around voting rights over roughly the past decade clearly illuminates the interlocking action-reaction dynamics of the new GOP axis.

Though intermittent skirmishes over voting rights had already erupted, the first decisive step in this modern struggle came in 2013. In the Shelby County v. Holder ruling that year, the GOP-appointed majority on the Supreme Court lit the fuse for the current confrontation by overturning the central provision of the 1965 Voting Rights Act: the requirement that states and local governments with histories of discrimination against minorities receive “preclearance” from the Justice Department before changing their voting laws. The landmark decision was rendered on a party-line and majority-rule basis, with the five justices (at that point) appointed by Republican presidents outvoting the four appointed by Democrats.

That ruling had the immediate impact of freeing from preclearance the 15 states covered in whole or part under the law (a list that includes Alabama, Georgia, Texas and Arizona in whole and Florida and North Carolina in part). It also encouraged other Republican-controlled states to pursue new restrictions by signaling “that this is a Supreme Court that doesn’t really give a blank about your voting rights,” as Jessica Levinson, a professor at Loyola Marymount Law School who specializes in election law, recently told me.

In Shelby’s aftermath, red states erected an array of new barriers to voting, including imposing tighter voter-identification requirements, intensifying voter purges and closing hundreds of polling places in urban and minority neighborhoods. These actions enormously escalated after former President Donald Trump’s false claims of fraud in the 2020 election: In 2021, 19 Republican-controlled states passed 34 laws making it more difficult to vote, according to a Brennan Center roundup.

As I quantified last year with data from the Brennan Center, the most restrictive state laws approved in 2021 have divided state legislatures almost entirely along party lines: Apart from one law in Arkansas that mixed provisions restricting and expanding access, Brennan calculated that just three of 816 state legislative Democrats had voted for any of the major bills approved by last summer, while just 19 of 1,601 state legislative Republicans had voted against any of them. Almost all of these bills faced uniform opposition from every state legislative Democrat.

Yet these bills advanced into law anyway on virtually party-line, majority-rule votes because no state legislature has a filibuster rule that requires a supermajority to approve legislation.

“Not a single state requires a 60% threshold for passing legislation,” says Lee Drutman, a senior fellow in political reform at the center-left think tank New America. “For all the Republicans who say we ought to keep the filibuster, should we also do that in the state senates? Well, maybe the Texas voting law should have required a 60% threshold? Maybe the Georgia law should have required a 60% threshold?”

Democrats don’t have the votes to stop these laws in the red state legislatures. And the Supreme Court has clearly signaled it is unlikely to impose meaningful limits on the red states: Since John Roberts became chief justice in 2005, it has never struck down a state voting-law restriction, and in 2021 the GOP-appointed majority issued another sweeping ruling (in the Brnovich vs. Democratic National Committee case) severely weakening the remaining section of the Voting Rights Act that the Justice Department and civil rights advocates are using to challenge the state laws.

Operating on the same rules as the state legislatures (and effectively as the Supreme Court), Democrats in the House of Representatives last year passed two bills, on a party-line, majority-rule basis, to counter the GOP moves. Those bills, respectively, reversed the court’s decisions eviscerating the Voting Rights Act and established a new nationwide floor of voting rights, including access to mail and early voting and same-day voter registration.

A grave week for civil rights, democracy and a presidency

But the refusal of Manchin and Sinema to exempt voting rights from the filibuster means that for the only time in this long sequence of events, Democrats must reach a bipartisan, supermajority of support to pass voter protections through the Senate and into law. The two senators’ decision means Congress can respond to the new voting restrictions only on the dim chance that Republicans in the Senate agree to override what Republicans in the states and on the Supreme Court have already done.

“If Congress is now going to be held hostage by the 60-vote supermajority requirement and be unable, even with a majority, to protect democratic rights in the states, then the national government has disarmed and leaves people unprotected from the abuses of partisans or White backlash in their own states,” says Waldman.

States’ divergence on rights widening

The voting rights struggle most clearly demonstrates the leverage of the new Republican axis. But the same pattern is coming into view on abortion. Republican-controlled states, including Alabama, Mississippi, Texas and Oklahoma, have passed a torrent of laws in recent years severely tightening or virtually eliminating access to abortion, typically over preponderant opposition from Democratic legislators. Courts have blocked most of those laws from taking effect because they violate the Supreme Court’s 1973 Roe v. Wade ruling, which established a nationwide right to abortion. In other cases, the laws are “triggered” to go into effect only if the high court overturns Roe. That day may be coming: In oral arguments during a challenge to the Mississippi law banning abortion after 15 weeks (as well as the decision not to temporarily block an even more restrictive Texas statute), the GOP-appointed Supreme Court majority has signaled it may overturn or severely weaken Roe in a decision next summer. The odds are near zero that any of the three Democratic-appointed justices would join in such a ruling.

The House of Representatives has already responded: Again on a majority-rule, near party-line basis, the Democratic majority approved legislation last September codifying a national right to abortion. But because of the filibuster rule that requires a bipartisan supermajority, that legislation is doomed in the Senate.

Multiple Republican-controlled states also are squeezing First Amendment rights by limiting how public school teachers can talk about race. The filibuster likely precludes any federal legislative pushback against those moves, and it’s unclear whether this Supreme Court will constrain those state laws (though some civil rights advocates hope that libertarian impulses might lead at least some GOP-appointed justices toward opposition). Likewise, multiple red states have passed laws targeting transgender young people (for instance, by barring them from competing in high school sports). The House, on another majority-rule, near-party line vote, last year passed legislation that would override those laws, but that bill too is blocked by the Senate filibuster.

Again it’s unclear whether this Supreme Court will intervene against the states in the lawsuits brought by LGBTQ rights groups; to the contrary, some legal analysts believe that if the GOP-appointed court majority overturns Roe, it might eventually use similar logic to reverse the 2015 Obergefell…

With help from Manchin and Sinema, a Republican revolution from below is driving national

Battles over elections

States’ divergence on rights widening

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