Does Every Vote Still Count?

In every election cycle, urging people to vote is usually accompanied by the standard argument that “every vote counts.”

Technically, that’s true. Elections have been decided by single votes before. But one recurring mantra during the run-up to the 2020 election was, “vote in numbers too big to manipulate.” The message was that President Trump and the Republican Party were going to cheat, and the only way to win was to have a victory so overwhelming that the cheating wouldn’t work.

That’s a fairly pessimistic take: We can’t stop the cheating; we can only adapt to it.

But it was also the right take. Republicans pulled out all sorts of dirty tricks to try to keep Trump from losing, ranging from the commonplace “reduce the number of polling places in Black communities” to the unanticipated “hamstring the post office during the biggest mail-in election in history.” And then Trump instigated a failed coup attempt against Congress to halt the certification of Biden’s victory.

Those numbers—which were eventually certified—matter. In 2016, Trump lost the national popular vote by nearly 3 million votes, but he still won the election by a very narrow margin: 107,000 people in three states determined the outcome of the Electoral College vote.

What is less often acknowledged is that the 2020 election was even closer than the 2016 race. Despite Joe Biden winning the national popular vote by more than 7 million votes, just 42,918 votes in three states—20,682 in Wisconsin, 11,779 in Georgia, and 10,457 in Arizona—were all that kept Trump from a second term.

If one person’s rights are violated on account of their race, it’s still discrimination.

With so much hanging on such small numbers, it’s particularly galling to hear a Supreme Court justice argue that small numbers don’t matter. Especially during a case that guts voting rights at a time when Republican officials in many states are rushing to restrict the franchise, based on the false narrative that the 2020 election was stolen.

On July 1, the Supreme Court ruled in a 6-3 decision in Brnovich v. Democratic National Committee to reinstate two Arizona laws that would disproportionately affect low-income voters and people of color. One law requires officials to throw out ballots cast in the wrong precinct. Another bars most people and groups from collecting ballots to drop off at polling places. An appeals court had tossed them out on the grounds that they violated Section 2 of the Voting Rights Act, which prohibits any law that discriminates because of race, whether that result is intentional or not.

The Supreme Court overturned the case not because the Arizona laws were found not to violate Section 2 of the Voting Rights Act, but because the numbers affected were small.

Justice Samuel Alito wrote in the majority opinion: “But the mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote. The size of any disparity matters.” 

Alito’s argument, which was joined by the other five conservative members including Chief Justice John Roberts, is dead wrong. Any disparity of impact means the system is not equally open, that it does not give everyone an equal opportunity to vote. Rights are not conditional on having enough people to form a lobbying firm. If one person’s rights are violated on account of their race, it’s still discrimination.

But that’s just part and parcel of the Roberts court’s ongoing attempt to undermine voting rights in this country, starting with Shelby County v. Holder, which gutted the Voting Rights Act in 2013 by removing the “pre-clearance” mandate. That required jurisdictions with a history of discrimination to receive approval from the U.S. Department of Justice before they could change their laws.

As far as crises of democracy go, this should be a hair-on-fire moment.

Once Shelby County was handed down, states rushed to enact new restrictions on voting, beginning with Texas, whose attorney general (and now governor) Greg Abbott didn’t even wait until the end of the day before announcing the state would enforce a voter ID law that had been blocked by the Obama administration during a pre-clearance hearing.

New York Times columnist Charles M. Blow recently wrote a good piece about how he’s altering his view of voting. Instead of holding the vote up as an article of faith in a democracy—that sets expectations too high, and actually undermines faith when voting doesn’t work the way it’s supposed to—Blow is now assuming that voting won’t work entirely the way it’s supposed to, and therefore is a right that needs to be fought for and won again and again.

That’s certainly a safer assumption when one of the two major U.S. parties is actively working—in full view—to undermine voting rights in several states. That’s not just limited to Arizona, whose “audit” of ballots in Maricopa County is widely seen as election denialism tinged with conspiracy theories and outright incompetence.

All over the country, Republican-controlled states have been rushing to enact more voter restrictions. As of May 14, 22 new laws in 14 states have been passed that add restrictions to voting, more than in any previous year, according to the Brennan Center for Justice. On July 7, Texas Gov. Abbott called a special session of the Legislature to consider a slate of Republican priorities, including tightening voting restrictions in the state.

There’s a lot of grassroots energy still out there calling for big structural changes that’s being left untapped.

Add that to institutions such as the Electoral College or the Senate, which both artificially inflate the power of more rural conservative states, and being wary of the limits of the power of voting in America is not just warranted, but a necessary reality check.

We’re coming up on the 2022 midterms, when, according to conventional wisdom, the ruling party usually loses seats in Congress. That ought to be a nerve-wracking situation for Democrats, who could easily lose one or both chambers with just a few votes going the other way.

But the real action is happening at the state level, with potentially farther-reaching consequences: local elections will be held for seats in 88 of the country’s 99 state legislative bodies, plus 36 governorships, including states such as Arizona, Georgia, Pennsylvania, and Wisconsin.

Republicans are also preparing to cement their power by redrawing Congressional and legislative districts to comport with the new Census, which is expected to cost Democrats seats in the House of Representatives—the only question is how many.

The GOP will be able to influence redistricting for more than twice as many electoral districts as Democrats in this cycle. The party right now controls 29 state legislatures, and in 23 of those states, they also have the governorship. (And examples in Wisconsin, North Carolina, and most recently Arizona demonstrate Republican legislatures are ready and willing to strip power from executive offices if they are occupied by Democrats.)

Those Republican wins will be locked in for the next decade, thanks to another Supreme Court ruling (2019’s Rucho v. Common Cause) which ruled that partisan gerrymandering of electoral districts is fine. The message from Rucho was that if you win the statehouse, it’s perfectly acceptable to redraw the maps to make it harder for anyone to challenge your power.

As far as crises of democracy go, this should be a hair-on-fire moment. At the national level, however, the Biden administration and Democratic leaders in Congress come across as complacent.

Legislation is being held up in the U.S. Senate thanks to Democrats Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, who have refused to rewrite the Senate’s rules to allow legislation to protect voting rights to pass on a majority vote. Meanwhile, with Biden’s agenda threatened by unified Republican opposition, the Senate took two weeks off for Independence Day.

Maybe the Democrats have a plan to dominate 2022, but I’m not convinced. Too often, it seems, Democratic politics focus on the numbers only enough to eke out a win.

But that’s a cautious strategy for protecting incumbents, not how you get big structural change. It’s notable that much of the energy behind Georgia Democrats’ victory last fall came not from the party establishment, but from grassroots organizations like the New Georgia Project and Fair Fight.

And right now, with an unabated anti-democracy movement still gaining support from Trump and the Republican Party, flat-out opposition from Republicans for any accountability to the Jan. 6 insurrection, and a Supreme Court actively hostile to voting rights even when they’re under threat, being cautious isn’t going to cut it.

There’s a lot of grassroots energy still out there calling for big structural changes that’s being left untapped. The battle lines are being drawn this year for the next decade, and if the Democratic Party doesn’t rise to the defense of democracy, it’s hard to see why they should expect progressive support. Every vote may not count the same any more, but those votes do add up. But voting in numbers too big to manipulate can only happen if everyone’s on board (and able to access the ballot box), and I’m still waiting for the Democratic Party to make that its priority.