On Wednesday, the House will hold hearings to address the risk of electoral subversion. In light of that, I’m re-upping this NYT piece of mine, titled “There’s Still a Loaded Weapon Lying Around in Our Election System.” The piece identifies a critical provision in federal election law that could well become the route through which state legislatures would subvert the presidential election. Congress needs to fix this provision before 2024. An excerpt:

The 2020 election revealed longstanding fractures in the foundation of our system for conducting presidential elections. Before these lead to an earthquake in a subsequent presidential election, we need to shore up that foundation.

The single most dangerous threat the election exposed was the prospect of legislatures directly appointing a state’s electors and overriding the vote of the people in that state. No state legislature has attempted to do this since at least the Civil War. But in the run-up to the 2020 election, this seemed the most likely means that might circumvent the voters and subvert the election. This concern has been proven warranted: After the Trump campaign’s postelection lawsuits failed around the country, its strategy was precisely to get state legislatures in key swing states to appoint the electors themselves….

This provision, known as the “failed election” provision, lies around like a loaded weapon. It is the only place in federal law that identifies circumstances in which, even after a popular vote for president has been taken, a state legislature has the power to step in and appoint electors.

The “failed election” provision traces back to the Presidential Election Day Act, first enacted in 1845. That act, after specifying the date for the presidential election, goes on to provide: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”

The act, however, does not define what it means for an election to have “failed.” Nor does past practice give any more determinate meaning to this term; this provision has never been invoked, at least since the closely related federal Electoral Count Act was passed in 1887. But the little-known history of the act reveals that one major purpose for it is now anachronistic, and the act needs to be modernized to reflect the limited purposes for which it might remain relevant today….

Two different, contemporary purposes might still warrant retaining a version of this provision, but if so, the provision needs to be rewritten to address these two specific situations in safer, narrowly defined terms.

First, a natural disaster or similar event might make it temporarily impossible for a state to vote on general Election Day. But in many contexts, states will be able to recover from these disasters quickly enough to hold the election within a week. State laws, enacted in advance, should provide for these foreseeable emergencies. Federal law, in turn, should permit a state to choose its electors after Election Day in this rare circumstance when it is impossible for a state to hold elections on Election Day.

Second, it is possible a state might not be able to certify its vote before the date the Electoral College must vote, which would risk depriving the state of its vote. That could happen if unresolved litigation raises legitimate challenges and the judicial process cannot be finished in time to certify a winner before the electors must vote. Leaving open a small window to account for this rare possibility might be necessary, but the scope of this power must be extremely limited. Indeed, one strategy of the Trump campaign was to exploit this possibility by dragging out court cases long enough for state legislatures to “have” to step in….

The American people, not state legislatures, should choose the president. The “failed election” provision, which lies around as one of the greatest threats to that principle, was created in significant part for reasons that no longer apply. To preserve the integrity of presidential elections, Congress needs to modernize that provision and define clearly the extremely limited, highly unlikely circumstances in which it might ever legitimately come into play.

Continuing the discussion of the two-year term for the House, Tyler Yeargain, Associate Director of the Yale Center for Environmental Law and Policy, sent me this graph he created. This shows, first, the strength of the original view that democracy required frequent elections. It also shows that, with the easier amendment of state constitutions, voters were able over time to change views about the appropriate tradeoff between empowering a government with a chance to govern effectively — hence longer terms — versus the value of frequent accountability to voters. By the late 1940s, the median term had become stable at four years. Thanks again to Tyler.

In response to the NYT piece I published today on the two-year term for the House, Rob Richie pointed out to me that governors had originally been enacted to short terms for many decades. Indeed, after WWII more than 20 states that still had two-year terms for governors shifted to four-year terms, assuming the information in this chart is accurate.

As late as 1876, around 9 states still had one-year terms. MA kept that system as late as 1919 and RI until 1911. Today all states but two have four-year terms — only VT and NH still have two year terms.

Needless to say, amending state constitutions is far easier than the federal constitution, which is why all these states were able to shift to the now standard four-year term for governors.

In a recent post, Ned expresses skepticism about the House exercising its power to judge its members’ elections. I agree that it’s a difficult political question whether the House should invoke its Article I, Section 5 authority. But as I explore in this recent paper, historically, legally, and practically, this strategy sits on firmer ground than Ned’s post suggests.

Historically, the House used to resolve electoral disputes all the time. Over its history, it has settled more than six hundred such cases. More significantly, the House has often used its Article I, Section 5 power to reject the apparent winners of House races and to seat their opponents. Around 120 contestants have prevailed in their challenges and so taken seats initially thought to have been won by someone else. In another 70 or so cases, the House vacated the seat and called for a new election. So it wouldn’t be “norm-shattering” for the House to make use of the Judging Elections Clause; it would be a revival of a precedent that held for much of U.S. history.

Legally, Ned objects to the House refusing to seat a beneficiary of gerrymandering because that practice isn’t “unlawful or tainted by any illegality.” But even the current Supreme Court, the same Court that authored Rucho, concedes that severe gerrymandering is unconstitutional. The Court just (wrongly) thinks that the practice is nonjusticiable and so can’t be policed by the federal courts. Nothing in Rucho hints that non-judicial actors, like the House, can’t enforce the constitutional prohibition on severe gerrymandering.

Moreover, the legality of an election under state or federal law isn’t dispositive for Article I, Section 5 purposes. What is dispositive is the House’s judgment about whether the election was conducted appropriately. Consider Ned’s example of the Fifteenth Amendment, which was ratified in 1870. In the Forty-First Congress—so prior to the Fifteenth Amendment’s ratification—the House unseated five Democrats from former confederate states (and replaced them with their Republican opponents). These Democrats owed their apparent elections to discrimination, violence, and fraud against African Americans: exactly what the Fifteenth Amendment would soon (but didn’t yet) prohibit. So the House unseated the Democrats not because of any unconstitutionality but rather because of the House’s own condemnation of racial discrimination in voting.

Finally, practically, there’s a straightforward way for a current House to prevent a future House from undoing its decisions about whom to seat or oust. It’s to make these decisions before the future House is sworn in, during the period between the election and the beginning of the next Congress. Having made these decisions, the current House would simply instruct the Clerk to seat members in the next Congress consistently with the current House’s determinations. It would be shocking if the Clerk, elected to her position by a majority of the current House, failed to follow that same majority’s instructions.

My new piece in the NYT highlights how institutional design choices, which we come to take for granted as the background features of American democracy, dramatically shape the kind of politics and governance we end up with:

The ability of the American political system to deliver major policies on urgent issues is hampered by features of our institutions that we take for granted and rarely think about. Take the Constitution’s requirement that House members serve for only two-year terms.

Just a few months into a new administration, as the country grapples with issues of economic recovery and renewal, Congress’s actions are being shaped not by the merits of policy alone but also by the looming midterm elections. It’s not just the fall 2022 election; many incumbents are also calculating how best to position themselves to fend off potential primary challenges.

The ability of the American political system to deliver major policies on urgent issues is hampered by features of our institutions that we take for granted and rarely think about. Take the Constitution’s requirement that House members serve for only two-year terms.

Just a few months into a new administration, as the country grapples with issues of economic recovery and renewal, Congress’s actions are being shaped not by the merits of policy alone but also by the looming midterm elections. It’s not just the fall 2022 election; many incumbents are also calculating how best to position themselves to fend off potential primary challenges.

In nearly all other democracies, this is not normal. The two-year House term has profound consequences for how effectively American government can perform — and too many of them are negative….

In nearly all other democracies, parliaments are in power for four to five years. Political scientists view voting as primarily the voters’ retrospective judgment on how well a government has performed. Four to five years provides plausible time for that. But the comparison with U.S. House members is even starker than focusing on the two-year term alone. In most democracies, members of parliaments do not have to compete in primary elections; the parties decide which candidates to put up for office. But since the advent of the primary system in the early 20th century, members of Congress often have to face twoelections every two years.

Moreover, in most democracies, candidates do not have to fund-raise all the time to run; governments typically provide public financing to the political parties. The two-year term, combined with primary elections and the constant need to raise funds individually, generates exceptional turbulence and short-term focus in our politics.

When the Constitution was being drafted, many framers and others strongly pressed the view, as mentioned in Federalist 53, “that where annual elections end, tyranny begins.” At the time, most states had annual elections. Elbridge Gerry insisted that “the people of New England will never give up the point of annual elections.” James Madison urged a three-year term, arguing that annual elections had produced too much “instability” in the states. In the initial vote, the Constitutional Convention approved a three-year term, but with four states objecting, the convention eventually compromised on two years. The Federalist Papersthen had to devote a good deal of energy fending off the demand for annual elections.

If you think American politics is not chaotic enough, imagine if the Constitution had adopted annual House elections….

In discussions of the Constitution’s structural elements that we might well not adopt today, the two-year term for the House is rarely noticed. (Attention is usually focused on the Electoral College, the Senate or life tenure for federal judges.)

Yet as other democracies demonstrate, there is nothing inherently democratic about a two-year term. We do not recognize how distorting it is that soon after a president is elected, our politics are upended by the political calculations and maneuvering required by always looming midterm elections and their primaries.

An ELB reader kindly pointed me to this piece. (Thanks for the tip.) Written by distinguished authors whom I greatly admire, the argument is in my view gravely mistaken.

First, let me try to summarize it fairly: the claim is that the U.S. House of Representatives, without passing an Act of Congress, can combat gerrymandering by refusing to seat winners of elections from gerrymandered House districts. The piece correctly observes that the Constitution (in Article I, section 5) makes the House “the judge of the Elections, Returns and Qualifications of its own Members.” The authors argue that this authority would permit the House, even after ballots are cast and counted in the midterms, to deny seats to any winning candidate who won in a gerrymandered district. Indeed, they would “refuse to seat [an entire] state delegation achieved through excessive gerrymandering.”

Although the House may have the raw power to do this without the constraint of judicial review because of the political question doctrine (but cf. Powell v McCormack), an attempt to exercise this hardball tactic would be an escalation in norm-shattering severely dangerous to small-d democracy. It also wouldn’t work to prevent gerrymandering from causing Republicans to take control of the House in 2022, for reasons that I shall explain.

The authors try to analogize to the situation in which the House refused to seat winning candidates in elections tainted by unconstitutional racial discrimination. But in those cases illegality affected the outcome of the election. In a judicial contest procedure, a court also would nullify a vote tally if evidence showed the vote tally was the product of unconstitutional racial discrimination in violation of the Fifteenth Amendment. But unless a gerrymandered district violates a law, the vote tally in an election held for that gerrymandered seat would not be unlawful or tainted by any illegality, and no court would nullify the result. Nor should the House itself in a procedure pursuant to Article I, section 5, which is its own method of permitting a contest to an election’s outcome.

By Geoffrey Skelley:

Incumbent politicians have moved further toward the political extremes in recent elections partly because they are worried about a primary challenge. But studies suggest that the primary electorate itself isn’t any more ideologically extreme than the general electorate. Rather, the bigger problem is the decline in competitive congressional districts. Only about 1 in 6 congressional districts were “swingy” in the 2020 general election, compared with roughly 2 in 5 in 2000.

The rapid decline in competitive elections isn’t because of our primary system, though. It’s due mainly to partisan sorting, whereby Democratic areas are becoming more Democratic and Republican areas more Republican — either because people are changing their attitudes to better match their party or they’re moving to areas where their preferences are already dominant. 

The upshot, of course, is that with fewer competitive districts, a primary is often more important than the general election, as it’s in this stage that the eventual winner is selected. That’s one big reason why incumbents fear a primary challenge even though few incumbents lose primaries — it’s the primary that increasingly matters for electoral survival.

I agree about the importance of competitive elections in creating incentives for candidates to appeal to a broader electorate. See my piece “Create More Competitive Districts to Limit Extremism.” The one point this 538 piece does not recognize is how little weight is giving to the importance of creating competitive districts — and not just when legislatures redistrict. Many reform proposals focus on other values and give no weight to creating competitive districts. Some of the reform proposals that have been adopted by voters, such as in Colorado and Arizona, do stress the importance of competitive districts. But others do not.

I have long posted links to ELB blog posts on Twitter, but it was a manual process. We’ve now automated it, and there are two ways to keep up.

You can subscribe to my Twitter feed, @rickhasen. It will include automatically generated links to blog posts, beginning #ELB, along with all of my other content on twitter.

Some may not want all of my other content! If you want just the ELB links, you can subscribe to the new Election Law Blog Twitter feed, @electionlawblog. This account does not reply, retweet, or follow anyone back. It’s just an automated service.

(If you are old-fashioned, you can also use our updated RSS reader. Or subscribe to the daily email.)

I had the chance to testify at today’s House hearing on Brnovich and its implications along with Sean Morales-Doyle, Robert Popper, and Ezra Rosenberg. My written testimony can be found here, and a few excerpts are below (focusing on how Congress should respond to the Court’s decision).

This brings me to my third point: Congress need not and should not accept the shackles the Court has placed on Section 2. To restore Section 2 to its proper role, Congress should consider adopting the disparate impact framework that is already used in areas such as employment and housing—and that Justice Kagan endorsed in her powerful dissent. Under this approach, the plaintiff would first have to prove that an electoral practice causes a statistically significant racial disparity. The defendant would then have the chance to demonstrate, through particularized evidence, that the practice is necessary to achieve an important state interest. Finally, the plaintiff could try to show that this interest could be achieved by a different, less discriminatory policy.

This framework is deeply familiar to litigants and courts, having been in place for almost half a century. This framework also avoids the constitutional issues that might be raised by a pure disparate impact standard—one that invalidates laws solely because of their racial disparities. Most importantly, unlike the extratextual factors of the Brnovich Court, this framework is effective. It would impose liability whenever electoral regulations give rise to statistically meaningful and unnecessary racial disparities. It would thus further Congress’ objective, expressed in Section 2 but thwarted by the Brnovich Court, of American elections no longer plagued by racial inequities.                

But Congress should not just revise Section 2 in response to Brnovich. It should also protect the right to vote on a nonracial basis in two further ways. One of these is affirmatively specifying which electoral practices states must and must not use, at least in federal elections. This is the strategy of H.R. 1, the For the People Act, as the bill currently stands. The other way that Congress should safeguard the franchise is by creating a new cause of action, available to all citizens of all backgrounds, against unjustifiably burdensome electoral policies. This claim would be an ideal complement to Section 2, targeting needless burdens rather than racial disparities in the electoral process. In combination, the two theories would make voting both more racially equitable and more universally accessible.

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Dave’s Redistricting App (DRA), which is free, has become an extraordinarily powerful tool in this decade for individuals and groups seeking to draw their own redistricting maps. Thousands of DRA users have created more than half-a-million Congressional, state legislative, and community maps in 2021 alone, and DRA is used by groups like Common Cause, the League of Women Voters, and the Southern Coalition for Social Justice. These maps can be drawn to show how a redistricting plan might maximize the partisan fairness of a map, or the competitiveness of districts, or minimize the number of counties split between districts. These maps can also be used to compare proposed or enacted plans to criticize those choices and propose realistic alternatives.

For understandable reasons, DRA does not limit the maps users can draw to those that would comply with the VRA. That’s in part because the VRA requirements are not easy to distill into a simple metric. But maps that do not comply with the VRA will not be useful for most purposes, since those maps could not be legally valid plans.

In order to enable DRA users to draw maps that will comply with the VRA, I have written this Medium post on the subject. The goal of the post is to distill the VRA requirements into relatively simple rules of thumb that mapmakers can use to draw maps that comply. These are meant to be rules that DRA users can implement relatively simply. For that reason, some of the rules are a bit overly simplified, and I do provide a fuller, more technical discussion of the legal standards in a few notes. My hope is that these simple rules of thumb — which I will revise if commentators have further good suggestions — will help DRA users draw legal maps. DRA is a great tool for this decade’s redistricting, and is not that many steps behind the software programs actual redistricters use.