Conservatives’ Long War on Voting Rights

The modern conservative movement was born in reaction against the labor movement and the New Deal welfare state, but it reached maturity fighting the civil rights movement. Barry Goldwater, the first Republican presidential candidate of the contemporary conservative movement, built his early political career on vocal opposition to the New Deal. By the time Goldwater secured the presidential nomination in 1964, he was vigorously fighting liberal proposals to marshal the power of the federal government to end southern apartheid. Goldwater insisted that he was no bigot, but that civil rights issues were best left to the states — even if those states prevented African Americans from participating in the political process at all. On the basis of that opposition, Goldwater became the first Republican to make meaningful inroads into the Dixiecrats’ “Solid South” since the end of Reconstruction.

Future presidents George H.W. Bush, then running for Senate in Texas, and Ronald Reagan, a key spokesperson for the Goldwater campaign, followed Goldwater’s lead on the issue during the 1964 election. Bush vigorously campaigned against the 1964 Civil Rights Act in his losing bid for the Senate. And Reagan maintained his hostility to civil rights throughout his political career, kicking off his 1980 presidential campaign with a speech extolling states’ rights in a Mississippi county best known as the site of three voting rights activists’ assassination in 1964. Reagan also tried, but failed, to gut the Voting Rights Act during his first term. Only after a sustained public pressure campaign did he finally support renewing the law in 1982, absent his proposals to weaken the law. He also opposed making Martin Luther King Day a national holiday.

Conservatives had to wait until 2013 to strip the Voting Rights Act of its power. Open opposition to the landmark law, which had become a symbol of racial equality and the legacy of the Civil Rights Movement, was untenable for any elected official. The Supreme Court, immune from such criticism, acted instead, ending meaningful federal oversight of electoral policy in states with a history of discrimination in a 5-4 ruling in Shelby County v. Holder (2013).

In the years since, a flood of voter suppression measures (including poll closures, purging of the voter rolls, and voter ID laws) has helped conservatives hold onto power even as their politics grow more extreme and less popular. Most recently, Florida Republicans used a poll tax to nix the results of a ballot referendum that restored voting rights to more than a million former felons.

Exploiting the Anti-Majoritarian Kinks of the American System

The American Constitution vests an unusually large amount of power in the courts. Supreme Court justices receive life terms, can overturn legislation (a product of the 1803 Marbury v. Madison decision), and undo executive orders, regardless of how popular they might be. At times, that prerogative has been used for progressive ends, as was the case during the heyday of postwar liberalism, when Earl Warren served as chief justice. Occasionally, the courts still serve such a function, like when the Supreme Court legalized gay marriage in 2015.

But for most of American history, the courts have been profoundly conservative institutions. During the “Lochner era” — beginning sometime after the end of Reconstruction and ending in Franklin Roosevelt’s second term — the courts ruthlessly punished union organizing and undermined even the most modest of social reforms. The infamous case from which the period gets its name, Lochner v. New York, ruled unconstitutional a state law that established a maximum sixty-hour work week for bakery workers. Even conservative Chief Justice John Roberts admits today the justices in the case weren’t “interpreting the law, they [were] making the law.”

Recognizing their inherent advantage in an undemocratic body, conservatives have been patiently working to return to the Lochner era for decades. By all accounts, the Roberts court is the most conservative in living memory, routinely rolling back civil rights, workplace regulations, and environmental protections. Today, two of the courts’ four liberals are eighty or older; the oldest conservative is only seventy-one. And there is a vast pool of talent in the lower courts for conservatives to choose from should any liberal die or retire at the wrong time.

This summer, the court’s conservatives gave the green light for unfettered partisan gerrymandering, a key tactic for inflating right-wing power. Gerrymandering has played out with disastrous consequences in Wisconsin and North Carolina, among other states, where far-right governments out of step with public opinion have dominated state politics for the past decade.

In 2018, statewide election results in Wisconsin favored the Democrats easily, with the progressive Tammy Baldwin winning reelection to the Senate by an impressive 10.8 percent margin and moderate Tony Evers defeating the anti-union stooge Scott Walker in the governor’s race by a narrower one-point margin. Yet in the state assembly, sixty-three of ninety-nine legislative seats were taken by Republicans. In an election cycle that repudiated conservatives, the Right will nonetheless maintain the power to block any progressive state-level legislation from being enacted in Wisconsin.

Then there’s the Senate. Among the major compromises of the Constitutional Convention was the creation of a bicameral legislature, one with a fixed number of representatives per states and the other with the number of representatives pegged to the state’s population. Today, that means that while the nine largest states make up just over half the country’s population, they receive only eighteen votes out of 100 in the Senate. The small states tend to be overwhelmingly white, rural, and conservative, while the larger states tend to be more densely populated, urban, and left-leaning. Even before you factor in the power of big money, the Right has a built-in structural advantage.

Worse, there is a feedback loop between the courts and the Senate, whereby capture of the counter-majoritarian Senate grants the power to control the flagrantly undemocratic court system. The 50-48 confirmation vote for Brett Kavanaugh last year was passed by senators representing just 44 percent of the population. Not content with such power, the hardline Tea Party faction of the conservative movement has been calling for the repeal of the 17^th amendment for the better part of a decade, in a bid to strip voters of their ability to select senators at all.

The Census Controversy

The recent controversy over the Trump Administration’s census citizenship question provided fresh evidence of the extent to which the Right is willing to use anti-majoritarian means for its political ends.

The imbroglio began when the administration announced it would ask census respondents if they were US citizens, a move that would depress participation among immigrants and immigrant-adjacent communities. Legal challenges followed, ultimately culminating in a Supreme Court decision, handed down by a 5-4 majority, that rejected the Trump Administration’s arguments. John Roberts joined the Court’s four liberals, but he objected not to the fact that the citizenship question would produce a less accurate census or skew political representation, but because the Trump Administration’s argument — that the query would be used to better defend the Voting Rights Act — was a blatant lie.

Had Trump won in court, the consequences would have been dire. The census drives the distribution of political power and federal money across the United States. The government uses census data to decide how much funding a given state receives for crucial programs like Medicaid and CHIP. The survey also determines how many seats a state will receive in the House of Representatives for the following decade, and influences the districting process for state legislative seats as well.

The citizenship question wasn’t a fringe idea cooked up by the Bannonite wing of the GOP — it was first proposed to Trump’s transition team by the longtime party operative Tom Hofeller. Establishment conservative think tanks and politicians were unanimous in their support for the citizenship query. Four of the five conservative Supreme Court justices, each of them with longstanding ties to the mainstream Republican Party, supported the White House, despite the Justice Department’s dissembling rationale for it.

This was not the first time Republicans tried to rig the census in their favor. In the 1990s, the Clinton administration proposed a simple technocratic fix (switching to modern statistical sampling techniques) for a long-running problem: even the best-run census undercounts the working class, especially racial minorities. Not just immigrants but young children, low-income people lacking stable housing arrangements, American Indians, black people, and Latinos tend to be more difficult to count. The people who are easiest to count (and overcount) are aging white homeowners, a reliably conservative voting bloc.

Republicans pushed back against Clinton’s plan, essentially arguing that it was a liberal plot to invent fake people from whole cloth in order to gin up more federal funding and political representation for their base. Republicans won that fight, with ease, and their arguments made a reappearance in the run-up to the 2010 census, which likewise did not use sampling methods.

Over the last decade, in anticipation of the 2020 survey, conservatives’ austerity agenda starved the US Census Bureau of its funding, forcing the agency to adopt cheaper methods (including internet surveys and the use of public and private administrative records) that experts argue will lead to a much worse undercount than in 2010. The impact of this quiet tampering with the census will be huge. A study published by the Urban Institute estimated that even if courts blocked the citizenship question, the failure of these methods, coupled with the effects of long-standing state repression of immigrants, will likely lead to an undercount of 0.84 percent.

That figure may sound low, but it represents millions of people. If the uncounted population were to form a separate state, it would carry roughly the same electoral weight as Kansas. The undercount will be highest for black people (3.24%), Latinos (2.84%), and indigenous people (1.39%).

This is the census we get even with the recent ruling against the Trump administration.

Conservatives Against Democracy

Conservatives today relies on political institutions that brazenly undercut majority rule. The Senate, the courts, the Electoral College — all provide conservatives with structural advantages at the expense of the many. But the Right isn’t content to sit back and cash in on the tilted playing field. It actively labors to restrict voting rights, skew the census, gerrymander districts, and generally increase the sway of the country’s most anti-majoritarian institutions. When confronted with criticism, they resort to the nonsensical argument that “we’re a republic, not a democracy.”

Majoritarianism is not the same thing as democracy. Free speech rights, civil rights, and other protections are essential to a flourishing democracy. But conservatives’ contempt for majority rule does not spring from a concern for a beleaguered minority (unless you think big business qualifies as an oppressed group). The truth is, the Right doesn’t expect a majority of Americans to support their policies, nor do they particularly care.

Yet for all their wealth and power, the Right’s ideas are only growing more unpopular with time. When progressive policies appear on the ballot in a direct referendum, shorn from half-hearted, business-friendly Democratic Party messengers, conservatives lose, time and again, be it right-to-work laws, minimum wage hikes, or Medicaid expansion, even in Republican strongholds.

The Right is afraid of the people — because they know that a mass democratic movement can win.