Washington Post columnist Jennifer Rubin had a good suggestion yesterday: Make Voting Rights Suppressors Pay. And you know who she means, obviously. "Republicans," she wrote, "might not be amenable to moral or constitutional pleas to protect voting rights, but economic pain might persuade them to cease their ham-handed crusade to disenfranchise voters. The Arizona Republic reports, 'Calling its lawsuit challenging 2020 election procedures groundless and disingenuous, a judge has ordered the Arizona Republican Party-- and its lawyers-- to pay the state thousands of dollars in legal fees.' Maricopa County Superior Court Judge John Hannah found that the GOP acted in bad faith and ordered the party and its lawyers to pay $18,238 in legal fees. While that does not cover more than $150,000 officials spent defending Arizona voters from efforts to disenfranchise them, it does make a point."
She's hard core and asserted that "Disincentivizing frivolous suits begins with recovery of legal fees (states could pass laws to provide for double or triple damages). It should also entail disciplinary proceedings against lawyers involved in frivolous actions who seek to undermine elections by spreading disinformation about the election. Once lawyers must pay for their own defense and suffer discipline, up to and including disbarment, they might be loath to take up the next frivolous case.
There are other creative ways to make Republicans pay for voter suppression. Voting rights legal guru Marc Elias explains in a piece for Democracy Docket that one of the most pernicious forms of voter suppression is long wait times. Due to lack of polling places, older machines and time-consuming voter ID requirements, wait times in minority and low-income neighborhoods are longer than in wealthier, predominantly White areas. Cutting back on absentee voting and early voting will make the problem worse as more voters are compelled to show up on Election Day.
“To be clear, long voting lines are not inevitable or unavoidable. They are the product of policy choices states and counties make as to whose time-- and whose vote-- is valuable and whose is not,” Elias wrote. “The data consistently shows that states and counties provide the equipment, space, and personnel necessary to avoid long lines in predominately white communities while failing to do so in predominantly minority communities-- even when both communities are located in the same geographic area and have similar governmental resources.”
Some of the data is stunning. Elias cites Jonathan Rodden, a political science professor at Stanford University, who in an expert report for a lawsuit found that in Atlanta’s metro area during the 2020 primary, “In polling places where minorities constituted more than 90 percent of active registered voters, the average minimum wait time in the evening was 51 minutes. When whites constituted more than 90 percent of registered voters, the average was around six minutes.”
Since Republicans are so keen on in-person voting, they might be persuaded to improve in-person voting for everyone. Since the bipartisan Presidential Commission on Election Administration in 2014 found that no voter should be compelled to wait more than 30 minutes to vote, measures requiring states to meet that goal (along with federal funding to facilitate shorter lines) should be in both parties’ interest. And if they do not meet the goal? Elias argues that if a voter must wait more than 30 minutes, he or she should be paid for their wait time. “Voters could seek the actual cost to them of waiting in line (lost wages, child care, etc.) or accept an hourly minimum that each state could set by law," he writes.
Republicans insist voting in person is more “secure.” They seem bent on cutting off alternative methods of voting. Fine. Then pay for an adequate in-person voting system that does not penalize low-income workers, parents and others who cannot afford to wait hours to vote.
If lawyers have to pay the price for frivolous lawsuits to disenfranchise voters and states have to pay for abusing voters’ time, we can at least stop forcing taxpayers (as in Arizona) and voters (through uncompensated time) to subsidize voter suppression. While a host of other battles to protect voting rights remains, this would be a start in the war to preserve democracy.
Yesterday in the same newspaper, UC Irvine law professor and author Rick Hasen went a slightly different direction, claiming that HR-1 is never going to pass the Senate-- not even if the filibuster is reformed-- because it is too big and unwieldy and covers enough ground for half a dozen individual bills. There are Democrats who like one part and oppose another. There's no passing it in a Senate like the one we have now. But, he wrote, "a more pinpointed law, including one restoring a key part of the Voting Rights Act, could make it out of the Senate to guarantee voting rights protections for all in the 2022 and 2024 elections."
Hasen's proposal started as a twitter thread this morning. It may sound too incremental for some but Hasen insists that "We need a narrower bill that would provide reason enough to blow up the filibuster for voting reform. And this is what he'd like to see in it:
"Such a narrower bill," he wrote, "is more likely than the 791-page H.R. 1, which also does major campaign finance reform, including public financing, Supreme Court ethics reform, and much more. Many of these things are worthy but will break Democratic coalition. The situation with H.R. 1 reminds me of 2006, when Dems and good government groups would not revise the Voting Rights Act when many of us warned it could be struck down if coverage formula wasn't tweaked. Democrats rolled the dice and left Voting Rights Act as is, leading Supreme Court to kill a key part of it in the Shelby County case in 2013. The danger is that we won't get H.R. 1 and we won't get ANYTHING done to deal with new wave of voter suppression, and we can no longer count on courts to do the right thing. It is almost inexplicable to me that Democrats are pushing H.R. 1 before they'd push the John R. Lewis Voting Rights Act, which would restore pre-clearance and do a LOT to protect voting rights in 2022 and 2024."
In his piece for The Post, he concluded that "Holding out for a perfect bill, in the end, will just prevent the enactment of a good one. At the moment, it seems more likely that nothing will become law before the 2022 elections than that H.R. 1 will. And then Democrats will look back at yet another missed opportunity to protect voters."