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Using the Texas model to protect voting rights

Some blue state needs to do this.

In the midst of the ongoing debate over Republicans’ siege on voting rights in states they control, here’s an unconventional suggestion: Democratic state legislators should take a page from the Republican playbook and empower private citizens to sue people who are “aiding and abetting” voter suppression efforts.

After all, that’s exactly what the Texas GOP has done with the abortion bill it enacted last year, which effectively bans abortions after six weeks of pregnancy, despite the fact that our Supreme Court has ruled that women have a constitutional right to abortion until a fetus is viable, which is generally about 24 weeks into pregnancy. As the Supreme Court declared in 1992 in its ruling in Planned Parenthood v. Casey, there’s a “constitutionally protected liberty of the woman to decide to have an abortion before the fetus attains viability and to obtain it without undo interference from the State.”

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While personally I believe this law is atrocious, if the GOP is going to use that legal model to infringe on the rights of women, why can’t Democrats use that same tactic to accomplish a monumental goal of their own: protecting voting rights? Democrats cannot simply roll over and let the GOP suppress the vote — and potentially rig elections — because new federal voting rights legislation was recently blocked by way of the filibuster in the U.S. Senate. Democrats need to be tenacious fighters on this all-important issue — and that means using every single tool available.

One way to show that commitment would be for states with Democratic governors and legislatures to enact laws that enable private citizens to sue anyone who is found “aiding and abetting” making it more challenging to vote. And if the person wins, they would be rewarded with $10,000 plus the cost of their legal fees from the defendant for each action they took that “aided and abetted” in restricting voting.

For example, New York could enact a law that enables people to sue any person in the state who is found “aiding and abetting” the GOP’s voter suppression efforts. This arguably would include elected New York Republican officials, such as Rep. Elise Stefanik, who championed former President Donald Trump’s election lies that have been used to justify the voter suppression laws in other states. That includes Stefanik claiming that President Joe Biden’s win in Georgia was because “more than 140,000 votes came from underage, deceased, and otherwise unauthorized voters — in Fulton County alone.” And in May, she was on Steve Bannon’s podcast, where she continued to further Trump’s “big lie.”

Lawsuits could also be potentially filed against GOP donors living in New York who give to organizations like the Republican National Committee, which has been vocally opposing federal laws to protect voting rights and continues to recognize Trump as its standard-bearer. This could all arguably be considered “aiding and abetting” the GOP’s voter restriction efforts.

The law could even be crafted so that Republicans in other states who engage in “aiding and abetting” the restriction of voting and do “business” in New York can be sued in the Empire State since it would arguably fulfill jurisdictional requirements. For example, when Florida Republican Gov. Ron DeSantis — who touted and signed into law sweeping voting restrictions in his state — traveled to New York in September for a political fundraiser, he was in effect “doing business” in New York by targeting New Yorkers for their donations. And he would be fair game to catch a lawsuit under this hypothetical anti-voting restriction law.

Further justifying this law is that voter restrictions in any state ultimately affect those in blue states since they impact races for federal office, and those federal officeholders in turn can enact laws that impact the entire nation — such as on climate change and gun safety.

I get that this sounds unconstitutional and insane — but it’s built in the exact image of the Texas abortion law. A women’s right to abortion in the first 24 weeks of pregnancy is a constitutional right — just like freedom of speech. Given that the GOP-controlled Supreme Court didn’t swiftly strike down the Texas abortion law, it would be hard-pressed to strike down these “protect the vote” laws without exposing itself as being nothing more than an arm of the Republican Party.

I have no doubt that this Supreme Court is up to the challenge of justifying the Texas abortion law while knocking down this hypothetical statute, but having the fight and making them do it would definitely be worth the effort. I also agree that it’s all ridiculous, but given all that’s happened it’s hard to avoid the conclusion that this is the most feasible path available at this time. New York and California, y’all are the best bets for this. Someone please get the ball rolling on it.

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4 Comments

  1. Jason Hochman says:

    I am against encouraging people to sue each other or to sue local business in order to enforce laws. It creates divisiveness, and an excess of lawsuits.

  2. policywonqueria says:

    Re: “A women’s right to abortion in the first 24 weeks of pregnancy is a constitutional right — just like freedom of speech.”

    Well, that’s not so. One is textually based, the other one is not, and that other one is also of rather recent vintage.

    The freedom of speech is expressly guaranteed by the First Amendment. By contrast, there is no abortion-rights amendment (though some states have relevant state constitutional provisions). It’s a judicial creation and therein lies the crux. Judicial pronouncements can be changed without resort to the amendment process.

    TEXAS VERSION OF FREE SPEECH:

    THE TEXAS CONSTITUTION

    ARTICLE 1. BILL OF RIGHTS

    Sec. 8. FREEDOM OF SPEECH AND PRESS; LIBEL. Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the Court, as in other cases.

    (Feb. 15, 1876.)

    No right to abortion in the Texas constitution either (but Equal Rights Amendment, yes)

  3. Joel says:

    “One is textually based, the other one is not, and that other one is also of rather recent vintage.”

    you’re such an accomplished (er, loquacious) lawyer that i am sure i don’t need to point out to you the 9th & 10th amendments or their meanings. nor the opinion of justice douglas in griswold that addresses your “distinction.” nor, i am sure, do i need to remind you that arguments such as yours were the exact reason james madison gave for not wanting a bill of rights at all.

  4. policywonqueria says:

    NONARTIFICIAL INTELLIGENCE

    Joel, we are not loyers. While others are grassroots operatives, we are a form of intelligent life deeper in the Underground. Mind the gap! We don’t like the terms think tank as the tank & panzer semantics evoke war. Every political dispute need not be equated with a war, whether civil or something else.

    On the merits, the 9th and 10th amendments have nothing to say on abortion either, so it’s all about the reading of the text and the interpretation.

    IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    So, what’s your point? These amendments leave room for action and pronouncements by other political actors: such as supreme court justices at federal and state level (by majority vote) and state policymakers and electorates (through popular ratification or rejection of proposed state const. amendments by referendum and indirectly through their elected representatives).