All posts by Ned Foley

Democracy Protection Requires More than Voting Rights

Senator Tim Kaine has a new Washington Post op-ed entitled The Jan. 6 attack demands that we protect voting rightsin which he says: “Only by passing comprehensive voting rights legislation can we live up to th[e] responsibility” to protect democracy from another attempt to subvert it like the one that occurred on January 6. 

The problem with Kaine’s argument is that while the right to cast a ballot, and to have it counted as cast, is necessary if democracy is to survive in the United States, safeguarding these voting rights does not suffice.  Perfect protection of these essential voting rights does not address what I’ve called the “Portman problem” and now “the Gonzalez problem”: the structural flaw of partisan primaries combined with plurality-winner general elections.

This structural flaw enables an authoritarian-leaning faction within one of the two major parties to win for its candidate the party’s nomination in its primary, beating a non-authoritarian primary opponent who would have been the “Condorcet winner” in the general election.  The authoritarian-leaning major-party nominee then goes on to prevail in the plurality-winner general election, because the “Condorcet winner” was knocked out in the primary and has no way of prevailing in the general election as most majority-preferred candidate (which the Condorcet winner is) given that the general election awards the office to a plurality winner and does not require a show of majority support.  In this way, the plurality-winner rule for general elections, combined with the antecedent partisan primaries, enables an authoritarian faction that only has minority support within the electorate overall (and whose candidate is not the Condorcet winner) to capture government power.

If America is going to protect itself from the risk of another January 6, it is going to need to fix this structural flaw. As is altogether too obvious, and is exemplified by Anthony Gonzales withdrawing from his reelection bid to avoid a Trump-inspired primary fight, Trump is endeavoring to exploit this structural flaw to recapture political power even though he represents only a minority faction and lacks majority support in the November electorate (statewide or district-specific, as in the Portman or Gonzalez examples). If he is able to use this structural flaw to take control of Secretary of State offices, governorships, and U.S. Senate and House seats, then his authoritarian-leaning minority faction is positioned to repudiate the result of the 2024 presidential election based on a “Big Lie 2.0” and the systematic plague of electoral McCarthyism he has been spreading.

 I have no doubt Senator Kaine is well-intentioned. But he is misdiagnosing the threat and the remedy necessary to address it.  Making sure every voter can cast a ballot in the midterms, and counting those ballots correctly, does not solve the Portman-Gonzalez problem.  (Even ending gerrymandering does not suffice, since the “Portman problem” applies to statewide as well as district-specific elections.) To adequately address the current danger of incipient authoritarianism to America democracy, it is necessary to eliminate plurality-winner general elections, which Congress is constitutionally empowered to do for U.S. Senate and House seats.  Regrettably, however, Senator Kaine’s Freedom to Vote bill makes no effort to do that. 

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The “Portman problem” is now also the “Gonzalez problem”

Earlier today, I did a post explaining why, if the goal is to reduce the risk of Republicans repudiating the result of a valid victory in the 2024 presidential election by the Democratic candidate, the highest electoral reform priority for Congress right now should be to enact the “majority winner rule” I’ve advocated previously–and elaborated upon in a forthcoming law review article. What I describe as “the Portman problem” (referring to Senator Rob Portman’s decision to abandon his Senate seat rather than facing a Trump-dominated GOP primary, even though he most likely would win the November election if it were a one-one-one race against either the Trump-backed candidate or the Democratic nominee) can be remedied, not by the various make-it-easier-to-cast-a-ballot provisions of the newly unveiled Freedom to Vote bill, but instead by structural reform that would replace plurality-winner general elections with the requirement that a general election winner must receive over 50%. This kind of majority-winner rule would enable a GOP moderate, like Portman, to compete in the general election even if unable to prevail in a Trump-dominated GOP primary.

Now, as if on cue, we get the news that Rep. Anthony Gonzalez, like Portman, won’t run for reelection next year. It’s the same problem: Gonzales likely could beat either the Trump-backed candidate or the Democratic nominee one-on-one (as thus is technically “the Condorcet candidate” for reasons that I explained in my earlier post today), but is structurally boxed out under the current system of a partisan primary followed by a plurality-winner general election. According to an interview Gonzales gave to The NY Times, Gonzalez laments the fact that “the congressional wing of the [Republican] party will become only more thoroughly Trumpified” as a result of his bowing out of the race. To Gonzalez, “Trump represents nothing less than a threat to American democracy,” calling him a “cancer for the country.” Even so, the structural combination of the partisan primary and the plurality-winner general election prevents Gonzales from trying to stay in Congress to avoid “a Trump-dominated House Republican caucus.”

This news of Gonzalez’s decision, coming in the same week that Senate Democrats release their Freedom to Vote bill, ought to be an alarming signal that they haven’t focused on the electoral reform most needed to protect American democracy from Trump-instigated election subversion. If the Senate next week is going to debate what congressional legislation is absolutely essential to safeguarding democracy, it should make sure to consider the kind of structural reform that would let the likes of Portman and Gonzalez–as well as Liz Cheney and so many other threatened non-Trump Republicans–prove themselves to be the most majority-preferred candidate in the general election even if they can’t win a Trump-dominated GOP primary.

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Democrats, democracy, and “the Portman problem”

Can one party save democracy by itself? I don’t think so, but that seems to be the view of some, as nicely captured by Ed Kilgore in responding to my blog post How Best to End “Electoral McCarthyism”?

            Kilgore acknowledges: “Democrats should exhibit reasonableness unilaterally as the sole custodians of small-d democracy.”  Further, this reasonable self-restraint on the part of Democrats means, Kilgore continues, their “voting-rights bill imposed by a filibuster carve-out … need not include every conceivable or advisable reform, so as to enable Republican claims of a ‘power grab.’”  Since the reason for my blog post was to explore how to reduce the risk of Republicans repudiating valid election victories by Democrats based on claims that Democrats unilaterally imposed electoral rules yielding results that can’t be trusted, there may not be much distance between Kilgore and me practically speaking. 

            Still, I think it’s worth considering for a moment the idea of Democrats “as sole custodians of small-d democracy.” For how long? The whole point of a fair two-party electoral system is that each party has a good chance of winning. In next year’s midterms Republicans may take back the House, and perhaps the Senate as well, even assuming Democrats unilaterally enact all the provisions in their newly unveiled Freedom of Vote bill. Then what? 

Continue reading Democrats, democracy, and “the Portman problem”
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Freedom to Vote Act and Same-Day Registration?

NPR is reporting this morning that the newly unveiled electoral reform bill put together by Senate Democrats, including Manchin and Klobuchar, would “ensure every state offers same-day voter registration.” I did not see that particular provision mentioned in this morning’s reports by the Washington Post and CNN. (The New York Times report mentions “new automatic voter registration programs” but not specifically same-day registration. Like NPR, however, MSNBC is reporting that the bill specifically contains “same-day registration” along with “automatic voter registration” according to Klobuchar’s office.) I haven’t been able to find a publicly available text of the new bill, or an official summary; if anyone would send that to me, I’d greatly appreciate it.

Assuming the NPR report is accurate, a federal same-day registration mandate over the objection of Republican states is an example of the kind of provision that worries me for the reasons expressed in my post yesterday. To be clear, I’m personally a fan of same-day registration and, from all the evidence I’ve seen, it works well in those states that have it. But long before Trump’s “big lie” and the “electoral McCarthyism” that plagues the capacity to count ballots in a way acceptable to Republican candidates when they lose, same-day registration was a provision that Republicans resisted based on a belief (right or wrong) that it struck the balance between access and integrity too far in the direction of access at the expense of an undue risk of mischief at the polls. If Congress were to mandate that all states must use same-day registration, it will significantly worsen the risk that Republicans will simply repudiate results that they don’t like in 2022 and 2024 on the ground that those results cannot be trusted because of same-day registration imposed upon them over their objections. I can envision Republicans in Congress on January 6, 2025 making exactly this argument as the basis for objecting to an electoral victory by the Democratic presidential nominee in 2024.

As I noted yesterday, E.J. Dionne argues that Senate Democrats must pass their version of voting rights reform, even without any GOP votes if necessary, because otherwise it would leave “a nation half-democratic and half undemocratic.” But that claim cannot seriously be made with respect to same-day registration. Many states, indeed most states, do not have same-day registration. (NCSL provides a useful chart.) Among the states that lack this particular electoral reform are Massachusetts, Rhode Island, New York, Pennsylvania, New Jersey, Ohio, and Delaware. I don’t believe that E.J. Dionne considers these states to be among the part of the nation left “undemocratic” if Congress fails to impose same-day registration nationwide.

This brings me to the larger point. If Senate Democrats really believe they are pursuing electoral reform in order to save American democracy from the increasing risk of authoritarianism, they are going about it in the wrong way. They, along with House Democrats, should be sitting down with Rep. Liz Cheney and asking her to help them craft a bill that will contain the essential ingredients for protecting America’s representative democracy from an authoritarian takeover. Cheney has proven her commitment to the cause; she’s lost her leadership in the House GOP caucus, and altered the entire trajectory of her career, because of this commitment. But if you asked for her opinion, I don’t think she’d say that same-day registration was one of those essential provisions; leave that particular policy choice to the states, I bet she would say. There are different ways to run a democracy, all consistent with actually being a genuine democracy, and having or not having same-day registration is one of those policy options on which democracies can go either way. In a federalist system, it makes sense to let the states make that policy choice between acceptable alternatives.

After hammering out with Liz Cheney the list of essential elements of protecting electoral democracy that are missing from federal law, then it would be time to test whether filibuster reform is necessary. If Liz Cheney is on board, where are the Senate Republicans who profess to care about saving the Republic from an authoritarian subversion of democracy? If there aren’t enough of them, then it’s a truly “break the glass” moment and time to figure out a way to cross the finish line with fewer than 60 votes. But who knows, maybe Cheney can bring 10 Republican Senators along, so as to avoid the need for a filibuster fight? Have any Senate Democrats reached out to her in this way? Including same-day registration in the bill would not seem to be the most successful strategy along those lines.

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How best to end “Electoral McCarthyism”?

As regular ELB readers know, I’ve characterized the problem of Trump’s “Big Lie” about a “stolen” 2020 election as an electoral version of the kind of “paranoid” strain of American politics that Hofstadter classified the Red Scare version of McCarthyism to be. Based on the research I did for Ballot Battles, I’m not aware of a historical example (prior to 2020) in which a serious dispute over counting votes was accompanied by the kind of blatant falsification of reality that is the mark of McCarthyism-style demagoguery. Not even the Hayes-Tilden dispute, in my judgment, was of that nature. The combination of McCarthyism-like fabrication of an evidence-free alternative reality with fighting over the results of high-stakes elections (like the presidency or California’s governorship) strikes me as an especially dangerous, and difficult, challenge for the ongoing operation of representative democracy.

Consequently, in the wake of new stories over the weekend on the increasing rise and spread of this kind of electoral McCarthyism, I continue to ponder what might be the most effective remedy for this pernicious development. I’m inclined to think that more attention should be devoted to measures that might help to increase trust among those predisposed to distrust election outcomes, rather than risking reforms that in other contexts might be desirable but under current conditions potentially could fuel the flames of distrust and make the pathology of electoral McCarthyism even worse. In essence, if Democrats were to impose unilaterally even a revised version of HR1/S1 over the unified opposition of Republicans (including those pro-democracy Republicans like Liz Cheney), wouldn’t that increase the likelihood in 2022 and 2024 of Republicans disgruntled with election objects simply saying in essence, “How can you trust the results of elections that were conducted under laws that the other party imposed on us over our unified objection?” Might it not be a smarter strategy to let Republicans write the rules for upcoming elections (as long as they remain within the realm of adequacy in terms of casting and counting votes), and then be able to say to them after they have lost, “Hey, we conducted the process exactly how you wanted it; what possibly gives you a basis for complaining with the result just because you lost?”

To be sure, there is a floor below which it would be unreasonable for Democrats to go. There are minimal conditions necessary for an election to qualify as being small-d democratic. But what of all the “voter suppression” measures that Republicans regrettably have undertaken in the grips of the current electoral McCarthyism actually take us below the floor of the democratic minimum? And how will attacking one of the two major political parties in the nation, currently gripped with this paranoia of Electoral McCarthyism, cure it–and the nation–of this pathology?

In this regard, I had a mixed reaction to E.J. Dionne’s new column. He contends that because of the recent Republican “voter suppression” laws, unless Congress nullifies them through new voting rights legislation, this congressional inaction will leave, “to evoke Abraham Lincoln’s declaration on slavery, a nation half-democratic and half undemocratic.” If this is true, it would of course be necessary to agree with him that Congress must not let this happen. But is his premise correct?

To be sure, before the 1965 Voting Rights Act, it would have been accurate–shamefully so–to describe the nation as “half democratic and half undemocratic”. One of the lessons I learned from my Ballot Battles research was just how much Texas, for example, did not qualify as minimally small-d democratic in either 1948, when LBJ won his key Senate election based on the stuffing of Ballot Box 13 and there was no rule of law remedy in this state for this actual instance of electoral theft, or even in 1960, when Nixon would have had a plausible claim (never pursued because there was still no rule of law way in the state to pursue this kind of claim) that Texas Democrats were at it again on behalf of the JFK-LBJ ticket. But is it really true to say that if the new “voter suppression” laws that have been adopted in Texas, Georgia, and elsewhere remain in effect for 2022 and 2024, then we won’t be able to conduct minimally small-d democratic elections in the United States anymore (as we have been after the enactment and enforcement of the 1965 VRA)? If so, we need to get specific about in exactly what way(s) each state has fallen below the floor of the minimal small-d democratic conducts essential for a democracy–and then what to do if some states have fallen below that floor and Congress fails (as is likely) to remedy that deficiency before 2022 and 2024. Do we categorically condemn in advance all results, regardless of which party prevails, because the elections were not held under minimally sufficient conditions?

In this regard, I’m reminded of Bruce Cain’s important book, Democracy More or Less. In it, he too talks of the floor below which no electoral process can fall and still qualify as minimally small-d democratic. But he also helpfully describes a category above that minimal floor, where contestation over the details of electoral procedures is reasonable and all choices within that range qualify as minimally small-d democratic even if they are not one’s own personal, or one’s own political party’s, preferable policy choices within that space above the floor. To what extent is the nation’s current fighting over electoral procedures above the minimal floor, as Cain describes it, or below the minimal floor, as Dionne would have us fear? To my mind, this is a crucial question as we confront the perils of electoral McCarthyism.

If the fight is to prevent us from falling below the floor, then we must (as Dionne argues) do everything possible to prevent that from happening, including if necessary on a purely one-party vote, and even at the risk of exacerbating the paranoia of electoral McCarthyism and thus the likelihood that accurate election results down the road will be repudiated without any evidentiary basis (but just because of the McCarthyism-like fabrication of an alternative reality). Even recognizing that risk, we have no choice, because (by hypothesis) if we don’t have this fight we lose our minimally acceptable small-d democracy.

But if Dionne is incorrect in his premise, and instead we are in the category of Cain’s reasonable policy disputation above the minimal floor, then I would suggest that our response to electoral McCarthyism should be entirely opposite of the Democrats trying impose over Republican opposition their preferred policy choices about how to run an election. Maybe, if the GOP and the nation weren’t in the grips of electoral McCarthyism, it would be okay for one major political party to impose its own policy preferences on how to run an electoral democracy over the objections of the other major political party (because the defeated party should just accept the reasonableness of the winning party’s preferred electoral policies), although I have my doubts even about that. But when as now the especially dangerous and distinctive paranoid conditions of electoral McCarthyism have taken root, and are growing, it seems as if that kind of one-party imposition of its electoral policy preference upon the other party that suffers from the paranoia of electoral McCarthyism has the potential of being extremely counterproductive. Indeed, it risks propelling forward the possibility of a reaction that would cause the society to fall below the floor of what’s essential for small-d democracy, thereby bringing out the circumstance that is exactly desired to be avoided.

Therefore, if we are in situation of being above the floor, as Cain describes it, we should consider catering to the policy preferences of the party that is gripped by the paranoia of electoral McCarthyism, even if we reasonably do not prefer those electoral policies, in order to help that major political party escape the grip of this dangerous condition. It’s a strategy designed to accept a shorter-term sacrifice in our own electoral policy preferences in order to strengthen the long-term capacity of the democracy to remain above the minimal floor. I’m afraid, however, that the Democratic-controlled Congress is pursuing the opposite strategy, eager to enact its own electoral policy preferences, but potentially exacerbating the risk that electoral McCarthyism actually will destroy democracy down the road.

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Newsom recall lawsuit

Politico has a story on a new federal lawsuit raising a constitutional challenge to the procedures that California uses for its gubernatorial recall. The lawsuit follows upon a NY Times op-ed from last week by Erwin Chemerinsky and Aaron Edlin, which argued that California’s procedures violate the one-person-one-vote doctrine of Reynolds v. Sims (and related precedents) because Gov. Newsom can receive more votes in the first (recall) phase of process than the leading candidate does in the second (replacement) phase of the process. Because only a plurality, and not a majority, is required in the second (replacement) phase, Newsom could fall just short of a majority in the first (recall) phase and then be replaced by a candidate whose plurality is far short of a majority and thus far lower than the number of votes in favor of retaining Newsom. As the op-ed observed, the problem could be solved by permitting Newsom to be one of the candidates eligible in the second (replacement) phase of the process, but given the way the California procedure is designed, if there is a majority of votes to recall Newsom in the first phase of the process, he’s ineligible from being a candidate in the second phase.

The California procedure does seem seriously flawed, to put it mildly. (I confess that I haven’t focused on it specifically before.) In general, I strongly favor majority-winner rather than plurality-winner elections. That point was the main theme of my book Presidential Elections and Majority Rule. It’s also the core of the claim that Congress should adopt a majority-winner requirement for congressional elections, as argued in the forthcoming article Requiring Majority Winners for Congressional Elections: Harnessing Federalism to Combat Extremism.

But it is one thing to say that majority-winner elections are desirable policy, and quite another to say that they are constitutionally mandated by virtue of the one-person-one-vote doctrine. Perhaps the particular California procedure is constitutionally flawed in a way that would not requiring judicial invalidation of all plurality-winner elections–although the idea that a candidate who is defeated in a first phase of a two-part electoral process is ineligible to be on the ballot in the second stage of the process was upheld in another case from California, involving the state’s “sore loser” law: Storer v. Brown, 415 U.S. 724 (1974). Thus, it’s not clear to me that the recall system is unconstitutional just because Newsom can’t compete in the second phase of the process after he’s disqualified in the first phase.

Both phases, considered separately, seem to comply with the basic idea of one-person-one-vote: each voter’s vote counts equally, first for determining whether Newsom is recalled and second for determining the winner of the plurality replacement election (for which Newsom is ineligible by virtue of being recalled). I could imagine the judicial activism of the Warren Court, which propagated the one-person-one-vote doctrine, invalidating the California recall system just because it offended the Court’s views of how democracy should work. But I’m not sure that the current Roberts Court will be as eager to apply the one-person-one-vote jurisprudence as aggressively as its Warren Court authors would.

Still, the case and issue seem interesting and important, and my own views on the specific constitutional question remain tentative as I’m just considering it for the first time. I very much welcome others weighing in on the merits of the pending suit.

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Colorado Redistricting & Competitiveness

I’m circling back to a post that Rick Pildes did on the role of competitiveness in the drawing of new congressional maps for Colorado. Here’s one more point along the same lines, based on the numerical analysis that Election Law at Ohio State has developed: currently, Colorado’s House seats on average are 9.3 points less competitive than the state as a whole. This number is derived from the following two statistics: first, the Biden-Trump margin in Colorado was 13.5; second, the average Biden-Trump margin in Colorado’s congressional districts was 22.8.

The proposal in yesterday’s Washington Post column would require Colorado to reduce this 9.3 competitiveness gap when drawing its congressional maps if (but only if) it is possible for Colorado to do so consistently with legitimate redistricting criteria, like compliance with the Voting Rights Act and keeping cities and counties intact within districts. Colorado, like any other state, could justify this kind of competitiveness gap as long as it were necessary to achieve valid nonpartisan redistricting goals. But if there is a map that equally achieves those goals that also improves the competitiveness on average of the state’s House districts, then the state would be obligated to choose the more competitive map. The proposal is that this requirement be adopted by Congress now, whether as stand-alone legislation or as part of whatever scaled-down version of H.R.1/S.1 that Senator Manchin and others are developing. But it would need to be adopted in time for use in the 2022 midterms, including the time necessary for either federal courts or DOJ (or both) to review each state’s proposed to maps for compliance with this requirement.

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House elections are unnecessarily uncompetitive

This Washington Post column builds on a numerical comparison of 2020 House and Senate elections that the Election Law at Ohio State team has developed. In addition to the example of Georgia discussed in the column, it’s worth considering the numbers from Pennsylvania, Wisconsin, North Carolina, and Arizona. The average 2020 House victory in each of these states was 27.7, 25.2, 23.6, and 22.2 points, respectively.  Likewise, the average margin between Biden and Trump in these states’ House districts was 24.7, 21.1, 22.8, and 20.0.  

By contrast, the Biden-Trump margin in these four states was 1.2., 0.6, 1.3, and 0.3. Two of these states had competitive Senate elections last year: North Carolina’s had a 1.75 margin, and Arizona’s was 2.4. All four are expected to have competitive Senate races in 2022.

Reducing the gap between the competitiveness of statewide Senate elections and districted House elections should be, in my view, a high priority when the new House maps soon get drawn for the 2022 midterms.

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Gerrymandering the Presidency Without a Coup

As much as I’m concerned about the risk that on January 6, 2025 there will a successful subversion of the popular vote caused by an abuse of the procedures set forth in the Electoral Count Act, I’m concerned about other ways that the Electoral College system might be gamed so that partisan manipulation of the process prevents the winner of the 2024 presidential election being the candidate preferred by a majority of the nation’s voters.

For example, I fear the possibility that one or two battleground states might replicate the method of appointing electors chosen by Maine and Nebraska, allocating an electoral vote for each of the state’s congressional districts. If Republicans win the 2022 gubernatorial elections in Michigan and/or Pennsylvania, while retaining control of the legislatures in those states, the GOP might be tempted to make this move there. These are the two battleground states where Biden’s win was largest, and thus the better bet from a purely partisan perspective might be to take a split of the state’s electoral votes in these two bluer states while going for winner-take-all victories in the states that Biden won more narrowly, like Arizona, Georgia, and Wisconsin.

Michigan made this partisan move once before, for the 1892 election, and the Supreme Court approved it as constitutional in McPherson v. Blacker, 146 U.S. 1 (1892). Pennsylvania, among other states, in recent years has considered doing this. And, of course, Maine and Nebraska already use this method. Thus, absent reform of the Electoral College system, the only thing blocking Michigan and Pennsylvania from making this move–if Republicans gain control after the 2022 midterms–would be self-restraint on the part of the Republicans in power. But the main lesson in the aftermath of the January 6 insurrection is that the party’s desire to hold power is greater than its adherence to the democratic norm of letting a majority of voters determine who should hold office.

If Republicans were to win back the White House this way–despite again losing the national popular vote (and despite the fact, let’s hypothesize, that they would have lost even the Electoral College if they had left the existing winner-take-all method of allocating electoral votes in place in those two battleground states)–it would be not be a coup. Rather, it would be an exercise of partisan gaming of the Electoral College process similar to what occurred in the early years of the Republic, including by Virginia for the 1800 election in order to improve Jefferson’s chances.

But it would illustrate just how profoundly undemocratic and susceptible to manipulation the Constitution’s system for presidential elections remains. As Alex Keyssar demonstrated in his masterful Why Do We Still Have the Electoral College?, since the Twelfth Amendment the nation has been unable to amend the Constitution to eliminate, or even reform, the Electoral College despite multiple attempts and popular support for change. And as Jesse Wegman observes in the New York Times, America seems to have lost a capacity for constitutional amendment in general.

The very serious challenge for the country, it seems to me, is how to create a civic culture in which the collective commitment to letting the majority of voters prevail is so strong that a contrary partisan desire to hold power cannot defeat this cultural adherence to democracy. We seem to be moving in the wrong direction in this regard. But we better figure out how to reverse course fast. Because it won’t necessarily take a coup to defeat the will of the majority; all it may take is using the existing procedures enshrined in the Constitution for over two hundred years.

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Dan Balz on DOJ notes: more to learn

Balz observes that new details on the period leading up to January 6 will be crucial to developing a full picture of Trump’s efforts to deny Biden his victory: “The new information is a reminder … that not everything he did was done in plain sight. How much more is there?”

Balz also cautions that Trump’s efforts are still ongoing: “For months, Trump has been on a political jihad. It began the night of the election and has never ended.”

For anyone who doubts that Trump and his supporters remain a serious threat, Balz provides a succinct and useful summary of what we know so far: “every such piece of evidence that comes to light adds to the pattern of a president obsessed with having lost the election and willing, even determined, to undermine the integrity of the election process — of democracy itself.”

Also: a separate story in the Washington Post discusses the issue of the Select Committee issuing subpoenas to members of Congress.

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No vacation w/o voting reform

So argue Dave Daley and Mike Parsons: “Whatever else Democrats decide to do with election reform before the recess, they should put partisan gerrymandering to a vote ASAP.”

I agree wholeheartedly that Congress needs to act now to ban gerrymandering of House seats for the 2022 midterms. I would not include in the bill a prohibition on gerrymandering of state legislative districts. I get the argument that Congress would have the power to do that, but the major problem of the last six months is Democrats trying to do too much, rather than just getting the essential done. Filibuster reform is going to be difficult enough; if a move to a “talking filibuster” is all that’s possible on that front, it will be a whole lot easy to defeat a talking filibuster if the bill at hand just bans gerrymandering in congressional elections and doesn’t attempt to control the districting of state legislative seats.

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DOJ backs Congress in Trump tax return fight

NY Times reports. This news is not directly about election law, but I consider it worthy of note here because of its potential implications for the 2024 presidential election. None of us know whether Trump will attempt to repeat Grover Cleveland’s feat of winning a second term after being a defeated incumbent (and doing so under very different circumstances–Cleveland never was impeached, for example). But I agree with all of those who say that we have to assume that Trump will try, unless circumstances change. One of the circumstances that conceivably could change is developments concerning his tax returns. Although turning them over to Congress should not cause them to be publicly released, congressional leaks have been known to occur (to put it mildly). I don’t want to make too much of this news (today’s other disclosure, concerning DOJ’s notes seems much more significant, for example), but insofar as Trump remains a major threat to American democracy, this particular piece of news is at least somewhat relevant.

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