Democrats are struggling to build a surefire legal strategy to block new Republican-backed restrictions on voting rights, relying on broadly worded warnings and urgent pleas that are designed, in part, to build political pressure on the White House, Congress and the Justice Department to act, as well as to engage their supporters to mobilize in advance of the 2022 midterm elections.
The approach is aimed at persuading recalcitrant Senate Democrats in Washington to pass a sweeping federal elections bill, painting the new Republican laws in the news media as suspect on arrival, and convincing the swing voters who last year helped elect President Joe Biden that the GOP is more interested in fixing elections for itself than in winning those voters back.
Locked out of power in the Republican-run states that are enacting laws making it harder to vote, Democrats are engaged in a partywide effort to push back against the legislation that has as much to do with winning hearts and minds outside courtrooms as it does legal victories inside them.
“We’re taking an all-of-the-above approach because we can’t allow these things to stand,” Jaime Harrison, the chairman of the Democratic National Committee, said in an interview today. “As Democrats, we have to make this personal and we have to tell the story as to why this is important. This is fundamental. The most fundamental thing we have to do is protect the right of all folks to vote.”
Republican laws passed in Georgia and Florida, along with a bill advancing in Texas, have so many new provisions that Democrats find troublesome both politically and legally that it is proving overwhelming to confront the measures one by one in court. Instead, the liberal push has become more focused on political outreach to ensure that progressive voters are sufficiently outraged about the new laws to apply pressure on senators and get out the vote next year.
“No one is going to file a 2,000-page brief,” said Myrna Pérez, the director of the voting rights and elections program at the Brennan Center for Justice, a nonpartisan think tank. “The energy spent educating voters about what’s going on, and then energy spent trying to stop it, is consuming resources from the bread-and-butter work that groups like mine do.”
Many of the voting bills have been able to sail through Republican-controlled legislatures because the Supreme Court gutted the Voting Rights Act in 2013, which hollowed out the “preclearance” provision that required certain states, mostly in the South, to gain federal approval before making changes to voting laws.
With the Voting Rights Act now far weaker, voting rights activists say that litigation is often the only way to fight new restrictions, and an imperfect one at that.
“Case-by-case litigation in the voting context is time-consuming, costly and ultimately inadequate because even if you win a case, frequently these kinds of laws remain on the books for one or more election cycle before litigation can be complete, and there’s no way to compensate people after the fact,” said Dale Ho, the director of the Voting Rights Project at the American Civil Liberties Union, which litigated several major cases last year.
Beyond lawsuits, Democrats are grappling with the long-term question of how to make crucial gains in GOP-led legislatures where state demographics, years of gerrymandering and the prospect of Republicans mapping themselves into another decade of control when redistricting takes place later this year have given conservatives a nearly unbreakable grip on power.
In Florida, where Gov. Ron DeSantis signed the state’s new voting law Thursday, Democrats are reckoning with decades of party disinvestment in down-ballot elections and issuing dire warnings that nothing will improve without wholesale changes in how the party invests in local contests.
Raymond Paultre, the executive director of the Florida Alliance, an often secretive network of progressive donors that has in the past been at odds with the Florida Democratic Party, said Friday that the new laws in Georgia and Florida and the bill advanced by Texas Republicans illustrated the need for more resources to be directed to state legislative races.
“We are living in and through sort of the remnants and results of a lack of investments in state infrastructure for the last 30 years,” Paultre said. “We don’t have a clear way of stopping these bills. Let’s use this as a wake-up call. Let’s get as upset with ourselves as we are with the Republicans.”
At the same time, Florida Democrats are already envisioning how they will use the new law as part of their campaigns in the midterm elections to paint Republicans as being opposed to Black and Hispanic people’s right to vote.
“People want us to push back,” said Fentrice Driskell, a state representative from Tampa. “We recognize that the ‘22 election cycle will be a great opportunity to try and do that.”
Democrats’ legal case against the Florida law, filed by the party’s top election lawyer, Marc Elias, argues that the legislation violates the First Amendment’s protection of free speech, and the 14th Amendment on the grounds that it would adversely affect people of color. Another suit, filed Thursday by the NAACP Legal Defense and Educational Fund, also argues that the law violates the First and 14th Amendments, as well as Section 2 of the Voting Rights Act and the Americans with Disabilities Act — because many drop boxes are likely to be moved to indoor locations that are inaccessible to people with disabilities.
The numerous lawsuits from Elias and others have not rattled the Republican National Committee’s legal team, which views them as an effort to drum up outrage as much as a legal challenge. And, they argue, the lawsuits will be very hard to win.
“The state is going to need to basically provide a justification that outweighs any potential burden on the right to vote,” said Justin Riemer, the chief counsel for the RNC. “And the fact of the matter is, the Democrats will be unable to provide evidence that shows that these laws actually impair voting rights and make it harder to vote.”
Instead, Riemer saw the lawsuits as an attempt to force Democrats in Washington to act.
“They’re trying to have Congress solve the problem for them by actually imposing a new legal standard for bringing these claims,” Riemer said.
In the hours between DeSantis’ signing of the Florida law and Texas House Republicans’ passing their voting bill early Friday, progressive groups spoke out about their desire for Congress to pass Democrats’ big election bills, the For the People Act and the John Lewis Voting Rights Advancement Act.
The For the People Act, which is far broader, would mandate national automatic voter registration and no-excuse early voting and mail-in voting; neuter restrictive state voter identification laws; and create independent redistricting commissions for congressional districts and new dark-money transparency measures. The John Lewis act would reinstitute the federal preclearance requirement for changing election laws.
The For the People Act has passed the House and remains stalled in the Senate, where Democrats lack both 60 votes to avoid a filibuster and an agreement among themselves over whether the legislation can proceed with a simple majority vote. The John Lewis bill has not yet passed the House.