By Jennifer Rubin [July 12, 2021]
Republicans, once upon a time, fancied themselves as defenders of “law and order.” The essence of the hackneyed phrase was that the law should be dependable, apply impartially and act as a restraint on those in power. Courts were to respect precedent so individuals and civil society could rely on predictable laws. Unlike dictatorships, where “law” is a flimsy facade that autocrats use to further their interests and to intimidate and confuse opponents, Western democracies, conservatives once boasted, delinked the power of the ruler from the operation of the law, making the latter supreme.
No more. Since the disgraced former president took office, Republicans have adopted a different notion of the law. They seek to render it unpredictable, increase the discretion of the state (when their side is in control), and attempt to accomplish what would otherwise be politically untenable through misdirection and harassment.
Take the latest attempt to undermine women’s autonomy. The New York Times reports on the Texas law banning abortions after six weeks, when many women do not yet know they are pregnant:
Ordinarily, enforcement would be up to government officials, and if clinics wanted to challenge the law’s constitutionality, they would sue those officials in making their case. But the law in Texas prohibits officials from enforcing it. Instead, it takes the opposite approach, effectively deputizing ordinary citizens — including from outside Texas — to sue clinics and others who violate the law. It awards them at least $10,000 per illegal abortion if they are successful. …The result is a law that is extremely difficult to challenge before it takes effect on Sept. 1 because it is hard to know whom to sue to block it, and lawyers for clinics are now wrestling with what to do about it. Six-week bans in other states have all been blocked as they make their way through the court system.
Consider the potential for harassment, spying, extortion and other vengeful behavior directed toward women. The law depends on what a woman’s neighbors, associates and friends know about her reproductive health and are willing to tell the authorities to grab a $10,000 bounty. The possibility of frivolous litigation is hard to quantify.
Texas Republicans lack the nerve to uniformly enforce the law or to defend its constitutionality. Professor Steve Vladeck of the University of Texas tells me, “It’s a deeply cynical effort to both (1) chill conduct that ought to be constitutionally protected; and (2) provide cover for judges to find creative ways to dodge the merits of the constitutional challenge.” This is a law designed not to “protect life” (a farce, given that protecting innocent life has taken a back seat when covid-19 restrictions were at issue), but rather to create fear and uncertainty for women and health-care providers. Will miscarriages lead to a lawsuit from a nosy office worker seeking to cash in on the reward? Will abortion bounties become a weapon in divorce and custody cases? No one knows — and that is the point. The law seeks not to protect the fetus in any systematic way but rather to intimidate women, making them into cash cows for spiteful anti-choice busybodies.
Republicans’ election law shenanigans are more of the same. They torment, annoy and harass voters — especially the poor, hourly workers, the elderly and voters with disabilities — by taking away conveniences such as drop boxes, forcing voters to stand in long lines and imposing needless burdens on voting by mail.
The Times reports that voting restrictions proposed by Texas Republicans would “ban 24-hour voting and drive-through voting; add new voter identification requirements for voting by mail; limit third-party ballot collection; increase the criminal penalties for election workers who run afoul of regulations; and greatly expand the authority and autonomy of partisan poll watchers.”
In Georgia, both voting rights groups and the Justice Department are challenging Republicans’ effort to make voting more arduous. The Justice Department summarized its challenge in a recent statement:
The United States’ complaint challenges several provisions of [Georgia’s voting law], including a provision banning government entities from distributing unsolicited absentee ballot applications; the imposition of costly and onerous fines on civic organizations, churches and advocacy groups that distribute follow-up absentee ballot applications; the shortening of the deadline to request absentee ballots to 11 days before Election Day; the requirement that voters who do not have identification issued by the Georgia Department of Driver Services photocopy another form of identification in order to request an absentee ballot without allowing for use of the last four digits of a social security number for such applications; significant limitations on counties’ use of absentee ballot drop boxes; the prohibition on efforts by churches and civic groups to provide food or water to persons waiting in long lines to vote; and the prohibition on counting out-of-precinct provisional ballots cast before 5 p.m. on Election Day.
None of these policies have much to do with election security (or fraud, which we know was virtually nonexistent in 2020). They have everything to do with making democracy as arduous as possible for those with the fewest resources. They seek to devise as many hoops as possible, hoping certain groups of voters will lack the wherewithal to jump through them.
The Supreme Court recently encouraged such tactics by inventing a rule in the Brnovich case that so long as voting is accessible by other means, any single hardship imposed by the state can pass muster. In other words, the court must decide when protected groups have too much difficulty maneuvering around these new edicts. Death of democracy by a thousand cuts seems to be the objective.
But throwing up needless barriers and increasing the risk that the unwary will not have their votes counted is the least of voters’ troubles. The greatest amount of uncertainty in the operation of elections comes from Republican efforts to devise rules designed to render the outcome of elections uncertain or even reversible by right-wing legislatures.
Democracy Docket reports on a new study from three pro-democracy organizations, States United Democracy Center, Law Forward and Protect Democracy: “Over 145 bills proposed by Republican state legislatures would reassign various powers of election officials and the executive branch to highly-partisan legislatures. This ‘legislative seizure’ of election powers could have sweeping consequences — including allowing elected lawmakers to overturn the will of voters and determine their own preferred winners of elections.”
This has dire consequences for our democracy:
Legislatures want to condense power from sources at all levels of the election process — from the governor to local officials. Nonpartisan, local election authorities are key to the voting process: they have expert, detailed knowledge of the jurisdictions in which they facilitate elections, and they ensure that the thousands of yearly elections held in a country as large as the United States run smoothly. Now, Republican state legislatures want to “micromanage,” or insert themselves into local administration processes in an attempt to further their political goals — but these bodies are not structurally capable of implementing the day-to-day requirements of election minutiae as they lack both the staff capacity and expertise that local election administrators have.Again, this effort contributes to the partisan politicization of election administration: in Arizona, state lawmakers proposed two bills (HB 2722 and HB 2799) that would transfer control over details like voter roll maintenance, equipment checks and vote counting to the legislature in an attempt to overturn the election results through an unconstitutional and disconcerting audit of Maricopa County. If they’re successful, we can expect to see similar efforts from Republican legislatures across the country.
In short, Republicans are taking refuge in Kafkaesque rule-making that empowers individuals and state authorities to harass, intimidate and confuse Americans attempting to exercise their fundamental rights. The law becomes a partisan tool to wage against opponents and to further otherwise unpopular social objectives (e.g., criminalizing abortion). It is a recipe for partisan legal administration and election nullification. If they cannot win elections and defend their policy objectives, Republicans appear willing to burn down democratic elections and “equal justice under the law.”
Jennifer Rubin is an opinion columnist covering politics and policy, foreign and domestic for the Washington Post.