Again with the “talking filibuster.” As I’ve argued many times, it’s an invitation to a quagmire. The history of old-fashioned filibusters shows that the costs are asymmetric, with Chuck Schumer getting to play the role of the Viet Cong. Insofar as his primary strategic interest this summer — with the Senate map in play — is eating up floor time unproductively, the very idea is threatening him with a good time. Like any guerilla, he doesn’t need to beat the Republican majority; he just needs to wait it out.
But this assumes that he and his caucus oppose the SAVE America Act. They probably shouldn’t. It’s a fair assumption that they do because they say that they do, although the reason why is, at best, murky. Beyond legacy Democratic opposition to voter ID and hypothetical concern about “millions” being thrown off the voter rolls, it’s not clear what his practical opposition is. Even the Democrats’ field marshal of election lawfare, Marc Elias, is vague and conclusory in what he doesn’t like about the “voter suppression” bill. (He singles out the inability of college students to use student IDs to register in a post attacking Susan Collins; that seems like some pretty small beer.) In reality, Schumer and his colleagues should welcome much of the SAVE America Act as politically beneficial.
Democratic support of the SAVE America Act would let them seem interested in election integrity without actually accomplishing much. Voter ID is popular, and they get to support it publicly. At the same time, the law almost certainly won’t take effect in the upcoming midterm elections and — even when it does take effect — it’s basically unenforceable. Blue states will ignore it, and no one will have standing to oppose this in court. Yes, the bill purports to authorize a private right of action to enforce it, but this form of prudential standing can’t override the Constitution’s requirements for actual standing. It is farcical to conclude that the federal courts in, say, California will acquiesce to novel theories of harm, traceability, and redress articulated by Texas as it sues to enforce a federal law in Sacramento.
At the same time, there simply won’t be the federal law-enforcement resources to monitor the tens of thousands of polling places to ensure compliance through federal oversight. You could deploy the entire Marshals Service to police California polling places and not make a dent in a state that vast. Lawyers who do Election Day operations will tell you it’s hard enough to staff swing precincts in swing states for Republicans, let alone surging Republican lawyers to noncompliant urban precincts in blue states. There’s a reason this came into being as a messaging bill: It’s not really designed to work. Democrats should welcome that.
Even if it did work, it’s not clear that it would hurt Democrats politically. Fantastical hypotheticals aside, Democrats don’t win elections because of armies of illegals showing up at the polls. As we see time and again in off-cycle and special elections, Democrats win elections with highly motivated, educated, suburban and urban voters. In other words, exactly the kinds of people who have passports and are eager to jump through extra hoops in order to cast their quasi-religious votes against Donald Trump.
On the other hand — as we see in presidential elections — Republicans are increasingly reliant on a coalition of rural and low-propensity, working-class voters to actually win tough elections. These are precisely the type of people who don’t have a passport. Unlike the suburban bourgeoisie, they don’t necessarily have their birth certificates kept in their orderly home-filing system. The same applies to the very elderly “silent generation,” which has long been a core Republican constituency: We expect octogenarians to have good passports and ready access to their pre-war birth certificates? The bill makes it harder for Republicans to vote.
Low-propensity Republican majority makers are also just that, low propensity. They aren’t eager to vote. Like Homer Simpson, they support fringe conservative candidates while also decrying actual voters as “a bit fruity.” Basic economics will tell you that making something a little bit harder (as the SAVE America Act does to voter registration) will weed out the unenthusiastic over time. It’s suppressing Republican votes in favor of the Democratic suburban base, which will walk over broken glass to fulfill their spiritual obligations against the “Orange Menace.”
The same principle applies to other aspects of the bill. (Although, as Professor Derek Muller often notes, it’s never quite clear which bill is being talked about when.) Democrats are lying when they say that married women who change their name can’t vote. They can — if they jump through attestation hoops to do so. This serves the purpose of making it a little harder to vote for married women with their husbands’ names, while not making it harder for unmarried women or married feminists to vote. Which of those groups votes Republican and which votes for Democrats? Again, this is making it harder for Republicans to vote.
Or take the restrictions on mail-in voting. The president hates mail voting because he blames it for what he sees as the stolen 2020 election, and, to be sure, the Covid-era “accommodations” in place at the time were often lawless and problematic. But this provision only makes voting doubly hard for necessary rural voters, who will need to travel long distances twice, both to register under the new registration regime and then to vote in person. State GOPs that rely on rural voters (like North Carolina, Alaska, and Maine) or on elderly voters (like Florida) have well-developed get-out-the-vote operations that take advantage of mail voting. By contrast, the urban and suburban bases of the Democratic Party just need to drive or walk down the street to register and to vote in a no-mail-voting regime. Yet again, it’s suppressing Republican votes.
The SAVE America Act seems designed to boost Republican electoral prospects c. 2010. During the Obama administration, it was the suburban middle and upper-middle class that delivered win after win for Republicans in off-year elections while Obama’s low-propensity working-class and minority voters drowned them out at the presidential level. Making it a little bit harder to vote would have been an effective way to advantage the Obama-era Republican coalition. Donald Trump changed all of that with his unique appeal to working-class voters and the subrational hate he uniquely generates in suburban women and professionals. The economics of the SAVE America Act in the Trump era seem designed to suppress the Republican vote to the advantage of Democrats.
Furthermore, it’s a federalization of voting procedures. Democrats have wanted this since time immemorial. Republicans are giving them the opportunity to finally kill the presumption of state control in federal elections long defended by Mitch McConnell and Sam Alito. That’s a theoretical win for Democrats. Given that, as a practical matter, it’s also likely to hurt Republicans at the electoral margins, why not seize the opportunity?
This opportunity is expanded when you consider that the bill will be an absolute mess in the states where it is enforced. It only applies to federal elections, so states will need either to conform their state-level registration and ID procedures to the federal law or risk having different requirements for state and federal elections. If someone shows up to vote in Florida with a concealed carry permit expecting that to work or in Alaska with a hunting license expecting the same and is then told he’s only allowed to vote in the state election, how’s that going to go? Red states will either change their popular voting procedures or invite chaos; Democrats will choose chaos. Given the diversity of voting regimes throughout the country, we should probably expect chaos that will unfold just in time for Democrats to propose cleaning it up with new federal legislation — say, the SAFER Voting Act, drafted by Elias.
There’s a fundamental difference between Democratic and Republican election-law efforts. As a Republican election-lawyer friend of mine likes to say, Democrats write election bills to win a majority while Republicans write them to prove a point. The SAVE America Act is out to prove points about abstract questions of election integrity and — in the president’s case — the 2020 elections. Democrats probably oppose it because they don’t agree with those points.
Democrats should put aside the vibes, step back, and look at it analytically like they look at their own bills. In the short term, the parts that they don’t like they can probably ignore while red states will apply the law to the detriment of Republicans. In the middle term, it will sow chaos in electoral administration across the country at the hands of Republicans. In the long term, it will establish the principle of federal election management they have long coveted. In other words, the smart policy play for Schumer should be to provide the 60 votes it needs to pass.
Unless, of course, it’s not about the SAVE America Act at all. Perhaps Schumer recalls his Napoleon on never interrupting your enemy while he’s making a mistake. As long as the SAVE America Act is stalled, Republicans will be beset by infighting as they debate whether to forfeit precious floor time or abolish the filibuster, each of which is a strategic priority for Democrats.
As long as the SAVE America Act is the priority of the president and the Republican base, Schumer simply can’t lose.