All posts by Ned Foley

The loss of competitive districts–and maybe democracy

Those who are closely following this cycle of redistricting are aware of the reduction in the number of competitive congressional seats. Politico, for example, has a story with the title “Kiss Your Swing Districts Goodbye“. The 538 website tracks how many fewer competitive seats there are in each state’s new map, compared to the previous maps; in Texas, the new map has only one “highly competitive” seat (by 538’s calculation), five fewer than last time.

But I don’t think there is (yet) sufficient public appreciation of just how dangerous for democracy this loss of electoral competitiveness is. Indeed, I’ll venture to say that if the United States loses its democracy over the next decade or so, historians and political scientists (presumably in other nations, after the loss of political freedom in this one) will attribute causality to this cycle of redistricting, when the purpose of having elections — so that voters could decide who governs them — was essentially squeezed out of the system. This death of democracy won’t happen all at once (as Levitsky & Ziblatt, among others have explained). But an uncompetitive House of Representatives, engineered through gerrymandering so that one party holds power regardless of what voters want, will be more predisposed to repudiate the results of a presidential election in which that party’s candidate is defeated. It’s at the point at which a president is inaugurated contrary to the tally of the votes in that election, because the party that controls the House has insisted upon inaugurating its candidate, when it would be fair to say that democracy in America has been subverted. Gerrymandering will have set the stage for this.

Throughout this year I’ve argued that Democrats in Congress have made a huge mistake prioritizing their behemoth electoral reform bill, first the “For the People Act” and then the “Freedom to Vote Act”, rather than singling out its anti-gerrymandering provisions for separate consideration. It’s been too easy for Mitch McConnell to demonize the behemoth bill as an effort by the Democrats at their own version of a partisan power grab, and the Democrats have lacked the votes for filibuster reform that would have pushed the legislation through over unified GOP opposition. A filibuster fight confined solely to the issue of gerrymandering, and the urgent need to eliminate this cancer from the body politic, might have looked very different–much harder for McConnell to demonize.

With the Washington Post’s latest story today on Senator Sinema’s refusal to modify the filibuster for electoral reform, the question arises (at least in my mind) whether it is now too late for a last-ditch effort at a Senate debate focused specifically and exclusively on the distinctive risk for democracy caused by gerrymandering. Maps in many states already have been drawn. But if Congress were to enact legislation before the end of this calendar year that required states to draw new maps that eliminate uncompetitive districts caused by gerrymandering, presumably states would need to redraw the lines to conform to the new federal standards.

If the Senate fails to enact anti-gerrymandering legislation (as unfortunately must be predicted), I for one will assign blame to the leadership of the Democratic Party in Congress (and not just to Republicans, or Sinema and Manchin) for failing to pursue a legislative strategy that required focus on this singularly important issue.

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The Problem with Plurality-Winner Elections

Election Law at Ohio State is pleased to present a one-hour webinar on the issue of electoral system design: The Problem with Plurality-Winner Elections – And Can Requiring Majority Winners Help Save Democracy? It’s scheduled for Friday, November 19, at noon ET.

Steve Huefner will moderate the discussion. I’ll present some research we’ve been doing here at Ohio State on this topic. Franita Tolson and Derek Muller, both familiar to readers of this blog, with comment as panelists. We are are delighted that Rachel Kleinfeld, Senior Fellow at the Carnegie Endowment of International Peace, who has been studying the relationship of electoral systems to political conflict, will also participate as a panelist.

The webinar will examine the role that the plurality-winner rule for congressional elections has in causing incumbents, like Sen. Rob Portman and Rep. Anthony Gonzalez (both of Ohio), to decide against running for reelection–regardless of being popular with their constituents–just because they have become out-of-step with their own party. The webinar will also explore whether alternative majority-winner electoral systems, like various versions of Ranked Choice Voting, might improve representation and reduce the risk of democratic decline in the U.S.

To register for the webinar (and more info), please click here.

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How best to safeguard democracy? Two conflicting views on recent display.

I am struck by how forcefully two very different strategies for defending democracy have been advocated this past week.

First, Ian Bassin on The Bulwark podcast emphasized (and I’m paraphrasing here) that the advice he heard from Europeans combatting rising authoritarianism in places like Hungary and Poland is not to let a pro-democracy coalition of center-right, center-left, and even farther-left forces fracture, because then it can’t work together to oppose far-right authoritarianism. (Bassin’s podcast comments draw upon a piece he wrote for The Bulwark.)

Second, Marc Elias on CNN’s Reliable Sources broadcast went out of his way to label Adam Kinzinger “extreme” in his opposition to voting rights, arguing that Kinzinger’s role on the January 6 select committee does not justify treating him as pro-democracy moderate.

Elias, it’s worth noting, was referring to Kinzinger’s response to a question from Jake Tapper on CNN’s State of the Union earlier broadcast. What I heard in Kinzinger’s response, which Elias did not mention, was Kinzinger’s willingness to work with Democrats to craft a voting rights bill that he could support. 

Elias’s approach, which he has also advocated in a recent essay, is to lump all Republicans together, including Kinzinger (and any other pro-democracy Republicans, like Liz Cheney or Senators Mitt Romney, Lisa Murkowski, and others), as the opposition to the Democratic Party’s efforts to save democracy all by itself. This approach would seem to be the exact opposite of what Bassin (as well as the Europeans with experience fighting incipient authoritarianism) urges. 

History, Elias says, will judge how this generation fights the current anti-democracy forces here in the United States. True.  But history might teach that it was a mistake to purge center-right defenders of democracy, like Kinzinger, from the anti-authoritarian coalition that America needs right now—instead of figuring out a way to work with Kinzinger (and others) to build a broader pro-democracy coalition capable of withstanding the present authoritarian threat. 

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Section 3 of the Fourteenth Amendment and January 6, 2025: the need for legislation now

All the current talk of Donald Trump running again in 2024 assumes that he’s eligible to serve as president if reelected.  He’s not, or at least there’s a strong argument that he isn’t.

In fairness to America’s voters, this argument ought to be resolved conclusively in court long before voters cast their ballots in 2024—and not on January 6, 2025, when Congress next meets to count electoral votes. 

Section 3 of the Fourteenth Amendment explicitly bars from the presidency, as well as any other “office, civil or military, under the United States” anyone who “having previously taken an oath … as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection … against the same.”  Given all that we now know about Trump’s role in fomenting the insurrection at the Capitol this past January 6, including the extent to which he was pushing Vice President Pence to act upon the Eastman memo—and urging the crowd on January 6 to pressure Pence to repudiate the constitutionally proper electoral votes cast for Joe Biden—there’s already a powerful case to be made that Trump “engaged in insurrection” within the meaning of this constitutional clause, thereby making Trump ineligible to be inaugurated again as president on January 20, 2025.  This ineligibility argument may grow even stronger after the House select committee completes its ongoing investigation.

Continue reading Section 3 of the Fourteenth Amendment and January 6, 2025: the need for legislation now
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Three fixes Congress should make to save democracy

Here’s a new Washington Post column summarizing my takeaways from the conference that Rick organized and led last week. These are the three italicized headings for the congressional reforms that would help reduce the danger of election subversion specifically in the context of the 2024 presidential election:

Modernizing the antiquated and ambiguous Electoral Count Act of 1887.

Focus on enacting those parts of the Freedom to Vote bill that directly safeguard the honest counting of votes and certification of results.

Changing election rules to require that members of Congress win a majority in the general election, not just a mere plurality.

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Initial Reaction to Eastman Memo

My first thought on reading the Eastman memo revealed yesterday was that it could wait until I do the relevant work for a planned second edition of Ballot Battles before I reflect on it in earnest. But in light of some discussion that I’ve seen on Twitter, it might be helpful to share these preliminary thoughts:

Setting aside the fundamental fact that the memo outlines a strategy to overturn enough valid electoral votes to keep Trump in power for a second term that he did not lawfully win (and therefore appropriately can be considered as a kind of coup attempt–with all the moral depravity that a purely despotic power grab of that nature entails), on its own terms the memo does not address the countermoves that would have caused its strategy to end in failure. (My analysis of this point derives from my Loyola Law Review article, Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management, as well as the follow-up Atlantic essay co-authored with Larry Diamond.)

Had Pence done any of what Eastman’s memo suggested, the plot would not have prevailed because the House of Representatives under Speaker Pelosi’s leadership would have caused the Twelfth Amendment’s joint session to come to a halt incomplete. Given Majority Leader McConnell’s acceptance of President-elect Biden’s victory, which he acknowledged in his speech on December 15, the day after the electoral college vote, it’s highly likely that the Senate under McConnell’s leadership would have joined the House under Pelosi’s in opposing any move by Pence to announce entirely on his own, based on his own manipulation of the process contrary to the procedures of the Electoral Count Act, that the Trump-Pence ticket was reelected. But the key point for Twelfth and Twentieth Amendment purposes is that the House under Pelosi’s leadership could have caused this halt in the joint session’s procedures even without the Senate’s participation. After all, it takes both chambers to conduct the joint session, and thus if the House shuts it down (even potentially kicking the Senate out of its own chamber), the joint session can’t proceed to completion to identify whether any candidate has won an electoral college majority. Likewise, if the process has broken down with the inability to identify whether any candidate has an electoral college majority, then there is no predicate for the backup “contingent election” procedure in the House (in which each state’s delegation gets a single vote).

With a stalled and incomplete count because of a standoff between Pence and Pelosi, the Twentieth Amendment becomes the relevant constitutional provision (not discussed in Eastman’s two-page memo, but the relevant part of the analysis in my Loyola Law Review article and the Atlantic essay). From the House and Pelosi’s perspective, because the counting of electoral votes remains incomplete, if that condition continues all the way through until noon on January 20, then Pelosi is in a position to assume the role of Acting President (and entitled immediately to receive the nuclear football, with its launch codes). Pence might take the alternative view, that he’s “gavel[ed] President Trump as reelected,” but then it becomes a question of whom the Pentagon recognizes as Commander-in-Chief: Pelosi as Acting President under the Twentieth Amendment, or Trump based on Pence’s asserted claim that the electoral count has been completed over the House’s objection and non-participation. Based on all we know about General Milley, from both before January 6 occurred and especially with all that has come to light since, in the context of this Pence-Pelosi standoff, Pelosi was going to be the one to prevail as consistent with the Constitution.

Moreover, once noon has passed on January 20, Pence is no longer Vice President (or Senate President) by virtue of the Twentieth Amendment. Thus, the Pence-Pelosi standoff will end this way: With the Vice Presidency still vacant, and Pelosi as Acting President, the joint session under the Twelfth Amendment and the Electoral Count Act will resume properly despite Pence’s earlier attempt to derail it. Once that proper process is complete, it will yield the conclusion that it would have all along: Biden and Harris have electoral college majorities and are duly elected. At that point, Biden becomes President under the Twentieth Amendment, and Pelosi is no longer Acting President. The whole process obviously would have been horribly messy, and deserving of the label “constitutional crisis,” but it would have ended with Eastman’s plan in failure.

Last point: I’ve read that the Eastman memo proves the need to reform the Electoral Count Act. To be clear, I’ve long been strongly in favor of reforming the Electoral Count Act. But what Eastman proposed was for Pence to bypass the ECA, declaring it to be unconstitutional, and purporting to proceed on his own authority based on his own (highly disputed) interpretation of the Twelfth Amendment. Improving the ECA might reduce the risk of a future Vice President trying to make that kind of move, because with a better ECA in place, it would make that kind of unilateral power grab by a Vice President even more brazen and politically untenable. But ECA reform can’t eliminate this risk entirely. To do that, it would be necessary to undertake the even more difficult task of revising the Twelfth Amendment itself, to remove its frustratingly ambiguous language about the process of counting electoral votes in the joint session, including the role of the Senate President.

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Freedom to Vote bill & democracy-protection

One main point of this new Washington Post column is that some specific provisions in the Senate Democrats’ bill might be both (1) unnecessary to safeguard democracy (even if desirable from a policy perspective) and (2) actually counterproductive to the goal of safeguarding democracy insofar as they potentially increase the risk of election subversion as a backlash effect of GOP hostility to voting procedures that they don’t trust being forced upon them by a Democrats-only vote in Congress. I use same-day registration as an example of this point.

The column’s second (and related) point is that, even assuming specific provisions are not likely to increase the risk of election subversion, if including them in the bill makes it more difficult to get across the finish line (including by means of some sort of filibuster reform that has yet been identified), then they risk sabotaging elements of the bill that are absolutely essential from a democracy-protecting goal–especially reducing the risk of election subversion.

As debate on the bill gets underway in the Senate, I hope there is a careful assessment of which provisions are absolutely key for democracy-protection in this respect, and which ones are not, so as not to jeopardize what will be the very difficult task of actually getting the essential elements enacted. If the goal of the bill is simply to have a messaging point to take into the 2022 midterms (“see, Republicans are against democracy, because they voted against our democracy-safeguarding bill”), I think that’s a big mistake. There are truly essential things that Congress needs to enact now (applicable to the midterm elections) to protect against the risk of election subversion, and it would leave the Republic gravely vulnerable to authoritarian power-grabbing on January 6, 2025 if any unnecessary or counterproductive elements of the bill undermine that top-priority objective.

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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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