Brett Kavanaugh Is Why We Need Voting Reform

The 2014 midterms are the root of the constitutional order's "breaking point."

All eyes are on Brett Kavanaugh this morning, as Senate hearings begin today on his nomination to the US Supreme Court. If confirmed, his appointment will push the balance of power rightward for a generation or more, potentially putting the court at odds with the electorate. This will be dramatically visible if, as expected, his confirmation triggers a wave of laws banning abortion in GOP-majority states.

As Emily Bazelon wrote recently, brilliantly and comprehensively in the New York Times Magazine, that shift rightward could yield explosive outcomes: “When the court has diverged sharply over time from the public, unpredictable counterforces have been unleashed. The judiciary is supposed to be the least dangerous branch of government, but when it falls out of step with the public, it can nonetheless strain the constitutional order—and the country—to the breaking point.”

Like most people, I reasonably expect the Democrats to take the House in November (probably the Senate, too, though that’s a riskier bet). What will they do with their new power? Pass voting reform, I hope. If voters had more say, if they were forced to have more say, the constitutional order might not now be reaching a breaking point. Paul Glastris wrote for the Washington Monthly, the best politics magazine in the country, that the Democrats should write a new voting rights act. I strongly endorse his proposal, but I don’t think it’s enough. We need mandatory voting, too

Remember, thanks to complacency among Democratic voters, the Republicans took the Senate in the 2014 midterms. (Voter turnout was historically low; it could not have been solely due to voter suppression tactics, though voter suppression tactics surely contributed to historically low turnout.) After Antonin Scalia died in 2016, the GOP refused to hold hearings for Barack Obama’s nominee. Scalia’s seat remained vacant until after Donald Trump won the presidency. With Kavanaugh, the high court’s rightward shift is complete. Imagine, Bazelon wrote, “that a Democratic Congress and president, with the public behind them, enacted Medicare for All. What would a staunchly conservative Supreme Court do?” I think you know the answer.

A new voting rights act, Paul wrote, would go a long way to reducing many of the current barriers to voting. He urges the Democrats to take up a combination of automatic registration and voting at home, or VAH, two reforms already being experimented with in some forward-looking states. “Under VAH,” Paul wrote, “all registered voters are mailed their ballots several weeks prior to an election, which they either mail back or drop off at a secure site. The system is almost impossible to hack, leaves a paper trail, and neutralizes suppression techniques like voter ID.”

I concede that reducing barriers increases voter turnout, a little. Paul wrote that it rises “among young people and low-turnout voters generally—exactly who Democrats need to mobilize.” (The Democrats should consider, and ram through if needed, making Election Day a holiday so working people can get off the clock to vote.) But I’m skeptical that that is enough. The Democrats must build a culture of voting.

There are small ways of doing this worth debating. Activist groups doing more, for instance, to educate people rather than only registering them to vote. Unregistered voters were not the problem in 2014. Registered voters were. With Obama in the White House, registered Democrats didn’t see a reason to show up. Activists can reallocate resources to create a culture in which voting is widely seen as a civic duty.

But that’s using carrots when sticks may be required. That’s why the Democrats should think hard about mandatory voting—vote or pay a small fine. Combined with automatic registration and mail-in voting, mandatory voting would increase turnout in ways difficult to predict. Some political scientists warn it would not help Democrats as I predict it would; the non-voting public is as evenly split as the voting public. To that theory, I say let’s revisit after voting in all federal elections is required by law.

The Republicans vaporized Senate norms to enshrine minority rule in the federal courts. This, along with serving the rich and blocking all things Democratic, has been their modus operandi for at least a decade. While the Democrats are right to be livid, they should be humble, too. Their people let them down in 2014, paving the way for the Republican takeover of the judiciary. Undoing that will take decades, but preventing a repeat won’t—not if the Democrats return power to where it belongs.

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