Revamping the Playbook for Keeping our Democracy: Eric Holder’s Our Unfinished March: The Violent Past and Imperiled Future of the Vote
“If a single statute represents the best of America,” wrote Justice Elena Kagan in her Brnovich v. DNC dissent, “it is the Voting Rights Act.”[1] But, she contrasted, “if a single statute reminds of the worst of America, it is the Voting Rights Act” (VRA). This dissent came just eight years after the gutting of the VRA in Shelby County v. Holder, which held that the preclearance requirements on states violated a state’s ability to conduct elections under the theory that insidious voting discrimination was a thing of the past. “Our country has changed,” asserted Chief Justice John Roberts. It has not.
The VRA was exemplary of what persistent efforts and good government can achieve—for the first time in American history, an Act of Congress would add teeth to the federal government’s enforcement power so that every citizen (with some notable exceptions) could participate in the democratic process. At the same time, no other act of Congress has been so under attack: Since Shelby County, thirteen States have closed near 2,000 polling places.[2] And since the baseless claims of widespread voter fraud perpetuated by Donald J. Trump and the Republican Party after the 2020 Election, twenty-seven states have introduced over 250 bills that would continue to jeopardize the right to vote.[3]
Former Attorney General Eric Holder’s new book, Our Unfinished March: The Violent Past and Imperiled Future of the Vote, tells us just what individuals endured—beatings, racism, lynchings, arrests—to gain the most precious right in a democratic government. But, Holder argues, our vote is under attack by a “highly strategic, well-funded campaign” made of “powerful interests committed to gutting our democracy.” He thus creates a playbook comprised of different suffrage movements throughout our history, how they managed to achieve the right to vote, and how we obtained the crowning achievement that was the VRA—and, above all, how we must save it. This is all underscored by the grim introductory note (aptly named The Case for Democracy) that Republicans now “see a diversifying America, and after watching President Obama win back-to-back races powered by record turnout from the most diverse coalition in history, they believe attacking the right to vote is the only way they can stay in power.”
Holder builds on the scholarship of Alexander Keyssar, Ari Berman, Jill Lepore, and others to narrate the contentious history of suffrage, such as the white-male-exclusive movement launched by the aristocrat Thomas Dorr in Rhode Island and how it took voting from privilege to right—“as long as you were male and white”—by prompting the removal of property requirements. Or how Radical Republicans like Charles Sumner and Frederick Douglass secured the vote for Black Americans, and how a record number of Black Americans were elected to public office because of it. And then virtually lost both vote and representation through Rutherford B. Hayes’ bargain in Congress that ended both Reconstruction and the Black American-political renaissance of the 1860s and 70s. Or how Bloody Sunday galvanized a nation to act, and for Lyndon B. Johnson to press his Department of Justice “to write the goddamnedest toughest voting rights act that you can devise.” Or how Congress responded with the powerful VRA in 1965: “At long last, [voting] had been recognized as a right, and a century after President Lincoln delivered the Gettysburg Address, we finally had a government of, by, and for the people—or, at least, more of the people than ever before.”
But then, conservative politicians started playing the long game against the vote assisted by young, overzealous lawyers.
Holder tells us that those initial Republican [1] [2] efforts crumbled, but not so in the Obama era, after “[t]he most diverse electorate in history had turned out in unprecedented numbers” to elect the first Black president and the 2010 midterms brought Republicans to powers across the nation in “almost all levels of government.” The newly elected went to work with the census data and launched a “two-prong attack on our democracy” consisting of bills attacking the voting process itself and gross gerrymandering that would dilute voting power.
As for the first, forty-one states passed legislation that made it significantly harder to vote, including the requirements to show a driver’s license while also closing DMV offices. Others opted to disqualify student IDs as legitimate proofs of identity while upholding the legitimacy of concealed-carrying permits. States thus mounted, as the late John Lewis stated on the House floor, “deliberate and systematic attempt to prevent millions of elderly voters, young voters, students, minority and low-income voters from exercising their constitutional right to engage in the democratic process.”
The VRA’s preclearance requirements (making jurisdictions with a long history of voting discrimination get the green light from the DOJ before enacting any substantial voting laws) under Section 5 staved off these efforts for a while, but the Supreme Court eviscerated the coverage formula (Section 4) that made Section 5 operative in Shelby County, so States once again struck with even harsher laws—a direct rebuke to John Roberts’ “we have changed” line in Shelby County.
As for the second, states implemented an even more pernicious scheme: state legislatures across the country went to the drawing board—with the Republican initiative REDMAP leading the charge—and gerrymandered electoral maps that yielded a system where politicians picked their voters. Here, too, the VRA’s Section 5 had been employed to combat maps that would have diluted minority voting power. Though there were some successes, most maps were upheld; the redistricting efforts paid off by handing Republicans the House in 2012 even though “more Democrats than Republicans voted in that election.” To add to the pervasiveness of gerrymandering, the Supreme Court threw its hands up and packed a constitutional issue as a political question in Rucho v. Common Cause, leaving those whose voting power had been greatly diluted to fare for themselves.
So how do we remedy this? Holder proposes solutions that go beyond the passage of the John Lewis Freedom to Vote Act, dealing with the voting process itself and with our institutions—solutions that would work to the benefit of both major parties.
Holder first suggests automatic voter registration (AVR), which would make Americans eligible to vote as soon as they turned eighteen. Every time they interact with the government—say, through the DMV—their information would be updated. This in turn would “increas[e] the accuracy of our voter rolls.” A complementary approach would be same-day registration (SDR), which would allow individuals who have had a change of information or have not subscribed to AVR to sign up at the polls. Holder points to these two strategies yielding over five million new voters.
Another technique would be enfranchising those who were once incarcerated, something the 65% of Floridians who voted in the 2018 election supported but Ron DeSantis refused to enact. If done, this would add another five million individuals to the democratic process. Individuals maintain some constitutional rights while incarcerated (i.e., access to habeas relief), so why they are not allowed to vote once reintegrated into society makes little sense.
In one of his suggestions on how to improve representative government, Holder points to statehood for Puerto Rico and D.C., implying that a change in status is the only way to fix the lack of voting rights in federal elections and representation in Congress. But the plan Holder proposes ignores the broad latitude Congress has in remedying imparity in the territories—a power that Congress has neglected throughout the history of territorial expansion and one the Court has endorsed. Indeed, borrowing language from a memo sent by then-counsel at the Department of Interior Felix Frankfurter, the Court said Congress could exercise “inventive statesmanship” over territories.[4] Rather than doing that, Congress has found ways to use the division among Puerto Ricans about status choices as the scapegoat for furthering equality.
Congress has already chartered the waters of what bold democratizing policies in the territories would look like. In 1952, for example, Puerto Rico became the first non-state in the United States to design and adopt a constitution of its own making. Likewise, it has used its powers to devolve control to D.C. residents under the Home Rule Act of 1973. And the best part is that this requires no constitutional amendment since Congress exercises almost unilateral jurisdiction over the territories under the Constitution’s Territory Clause.[5] Were Congress to make opportunities according to inventive solutions, it would uphold the idea our country promulgates to the world: “power is in the people over the Government, and not in the Government over the people.”[6]
Appropriately, the last changes Holder advocates for deal with changing our institutions. According to Holder, Congress, the Presidency, and the Court no longer reflect democratic principles.
For Congress, he seeks two changes that would pave the way for progress. First comes the restructuring of the Senate so that it falls closer to the population of states rather than the arbitrary number imposed by the Constitution. (Holder paints the picture of a voter in North Dakota who has forty times more of a say in the Senate than does a voter in California.) Next, Holder springs off the scholarship of Adam Jentleson and calls for the end of the filibuster so that bills addressing voting and civil rights are no longer blocked by the “[t]yranny of the minority.” This, however, would require almost gargantuan efforts, given that efforts by Democratic Party to end the filibuster have fallen prey to intraparty intransigence (consider Senators Sinema and Manchin). Thus the best way to come close to even achieving some of these reforms would require voters to show up to the polls like never before.
For the Presidency, Holder advocates for the end of the Electoral College, a measure that would end the “patently preposterous” fact that a president “could win the support of fewer Americans … and still end up the president of the United States.” While he sees an impediment in ratifying an amendment to that effect, he offers the National Popular Vote Interstate Compact (NPVIC) as an alternative. The NPVIC would not require an amendment and would make electors reflect the will of the people—slowly, Holder explains, this would “render the Electoral College obsolete.” But the catch to this proposal is that Republicans are unlikely to go along with it, given that two out of the last four presidents (both Republican) have lost the popular vote and still arrived at the presidency. The only hope is for more and more states to join the NPVIC; the federal government is not the likely hero in the story of the Electoral College’s undemocratic nature.
Then comes the Court, an institution that has, time and again, struck down provisions of the VRA and handed down “dubious decisions” on reproductive rights, the Affordable Care Act, and Trump’s Muslim ban. Holder traces the root of the problem to life tenure. He argues that the best way to tackle this is by limiting the justices’ terms to eighteen years. But this isn’t enough: He proposes an up-and-down reform of the nomination system, including the ability of presidents to appoint a set number of justices per term—one in their first year and one in their third. For the lower federal courts, however, Holder makes no suggestions. His propositions, then, should extend to both federal district and circuit courts, even if they are not as limited in membership as the Supreme Court.
Though Holder at times does not go far enough in calling for reform—for example, going with the middle-of-the-road approach of suggesting statehood for D.C. and Puerto Rico rather than urging Congress to democratize the territories through bold action—his guide to the vote and how his plan would help in preserving our democratic system are more appropriate now than ever. State legislatures have introduced various laws that seek to restrict the electorate and have done so largely because the Court has left but a shell of the VRA. To best protect the vote, we must not only focus our strength on passing robust voting legislation like the John Lewis Freedom to Vote Act, but we must reform our institutions, reform our system of elections, and most importantly, make it easier to vote—build a “government of the people, by the people, and for the people.”
[1] 594 U.S. ___ (2021) (slip op.).
[2] Joel Park, “Voting Under Siege: Eight Years of Shelby County v. Holder,” available at https://civilrights.org/blog/voting-under-siege-eight-years-of-shelby-county-v-holder/.
[3] “Voting Laws Roundup: February 2022,” available at https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-february-2022.
[4] 579 U.S. ___ (2016) (slip op., at 17).
[5] Art. 4, §3, cl.2 (“The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”).
[6] 4 Annals of Cong. 934 (1794).
Featured Article is December 10 march for voting rights, by Michael Fleshman
