NY Times: Meeting at the White House, maybe. “Democrats are close to finalizing a scaled-back bill that activists hope could be a battering ram in the fight over the filibuster.” I still wonder whether the better filibuster strategy is to focus on one issue at a time, starting with redistricting for a variety of reasons including the need to act before new maps are drawn, rather than even a scaled-back version of the omnibus S1. But the whole issue might be moot if Senator Schumer doesn’t want a filibuster fight: “Mr. Schumer has yet to commit to a timeline, and it is unclear if he would want a full-fledged filibuster fight playing out just as he and Mr. Biden are trying to maneuver a bipartisan infrastructure bill through the Senate.”
Washington Post reports on today’s meeting among Senate Democrats to bring forward new version of S1, the For the People Act, building upon Senator Manchin’s compromise proposal. There’s also the possibility of new provisions aimed at election subversion. But there’s still no prospect for adoption, absent support from GOP Senators (which seems a daunting hurdle), unless there is some sort of filibuster reform (at least to a “talking filibuster,” which would put pressure on the GOP Senators to sustain their opposition).
On voting rights from Norman Lear.
The Network for Responsible Public Policy last week hosted a discussion on the current status, and future prospects, of the For the People Act, still pending in the Senate as S1 (having been enacted by the House as HR1). Dan Weiner of the Brennan Center and I offered different perspectives on the content on the bill, the priorities of its components–I emphasized the need to combat gerrymandering before the midterm maps are drawn–and strategies for getting priorities adopted. I thought it was a really good discussion: while Dan and I agreed on some key objectives, there definitely were differences in how to think about the pending bill and how best to protect American democracy at this current moment of great stress. You can watch the discussion either at the above link or here.
Politico reports on the fear among Democrats and voting rights activists that getting out the vote (GOTV) will be much harder in light of the new more restrictive voting laws being adopted in states like Georgia. The article is useful because it helps explain the intensity of the opposition to these laws. And without getting into a discussion here about how unjustified (or not) these new laws are from a policy perspective, it is worth noting an analytical distinction that often gets elided in the coverage of these laws: cutbacks in voting opportunities that are retrogressive, and thus are an impediment relatively speaking to GOTV efforts, are not necessarily voter “suppression” in the strict sense of disenfranchisement (i.e., a barrier to casting a ballot and thus participating in the election). If voters have a genuine opportunity to participate but choose to abstain, they aren’t being denied the right to vote. This is true even if voter turnout efforts on the left fail to reach their target goals, or even past turnout levels. To be sure, these laws may be cynically motivated by a partisan realization that turnout rates are variable, depending on how convenient voting is; if it is less convenient, some marginal voters may not bother to cast a ballot, even though they actually have an opportunity to do so. It is certainly appropriate to condemn that kind of cynical partisanship, since it is a form of bad faith and contrary to the ideal of structuring the rules of electoral participation in the public interest (based on a nonpartisan assessment of the overall relevant policy considerations). Even so, discussion of this topic (at least in my view) ought to be careful to use terminology that recognizes the distinction between new laws that hinder participation compared to new laws that deny participation. Often, it seems that the phrase “voter suppression” or similar language is employed to make the former seem more like the latter, or at least to lump the two categories together.
Now that I have finished a draft of a new Article, Political Conduct and the First Amendment, I am eager to join the conversation on the ELB. I couldn’t be more thankful to Rick for including me as part of the team. I am a devout reader of the blog and look forward to broadening the ongoing discussion in the election law community about how to improve both democratic governance and faith in democratic institutions.
In the meanwhile, like many of us, I have been wrestling with how to make sense of the Roberts Court’s indifference to voters and democracy. Political Conduct and the First Amendment is my take on the bigger picture:
Preview: The First Amendment’s primary constitutional role is to defend our nation’s commitment to the collective project of self-governance. Its provisions protect both speech and political conduct toward the end of securing vital channels for influencing public policymaking, demanding responsiveness, and ensuring accountability. Over time, however, the Supreme Court and scholars alike have gravitated to the speech clause, driven by the misconception that democracy is a product of political discussion, rather than political participation. The Court has thus reduced a multifaceted amendment protecting the political process writ large into a singular protection for free expression. The Article explains not only why this is a mistake, but how it negatively impacts our democracy. It proceeds to offer a more nuanced account of the First Amendment’s relationship to self-governance—one that vindicates a construction of the amendment that actually protects democracy in all its facets. The three main pillars of this new account are: protection for political conduct; recognition of a strong anti-entrenchment norm; and a better appreciation of the significance of drawing a distinction between the domain of governance and the domain of politics in First Amendment jurisprudence.
What jumped out most to me on a first quick look at these numbers was the racial divide on whether voting is a “fundamental right” or instead a “privilege”. Blacks split 77-21 in favor of “fundamental right.” Asians and Hispanics were both essential two-thirds in favor of “fundamental right” while one-third in favor of privileges. Whites, by contrast, were split almost evenly: a bare 51% said “fundamental right” while 48% said “privilege.”
Voting Laws Roundup: July 2021. I saw this just after posting on Politfact’s caution on the need to be nuanced when characterizing these new state laws. To the Brennan Center’s credit, this July update prominently states up front: “The new laws restricting voting access are not created equal.” It goes on to explain that some of the new statutes are “mixed” and others are “narrower in scope.” Still, I might quibble with how the Brennan Center describes some of the specific measures. For example, it calls “harsher” the requirement for absentee voters to produce a numerical form of identification (like a driver’s license number) rather than to use signature-matching as the way to verify an absentee voter’s ID. I would argue, to the contrary, that an accessible form of numerical ID is actually more voter-friendly than the inherently fraught process of signature-matching. Even so, I consider it a positive development if the public discourse on these laws is becoming more detailed-oriented and less of painting with the broadest possible brush.
Kudos to Politifact for this careful and detailed explanation of the degree to which the new state laws on voting make it harder to vote in those states.
Their analysis makes clear that they considered only the issue of retrogression: “Would the new law make it harder for a voter to cast a ballot in their state in 2022, compared with 2020? We did not judge how the new law compared with voting laws in other states; we simply looked at which direction the law went.”
They also are measured in the extent of the restrictiveness of any such retrogression: “All told, we found that about two-thirds of the new laws made changes that can be considered significant restrictions for voters. Another quarter of the laws made changes where a restrictive impact is conceivable but more speculative. And a few of the laws included some restrictive elements, but also included separate provisions that made voting easier.”
This op-ed in The Washington Post, by John C. Ackerman, an Illinois county clerk, argues that calling the new state laws that cut back on voting opportunities “21st century Jim Crow” is a “vilification campaign” aiming “to smear Republicans and keep Democratic voters angry and motivated.” While that rhetoric is harsher than I would employ, and there are details in the piece with which I disagree, I do think there’s an important point here. What is currently going on in states like Georgia and Texas, as objectionable and retrogressive as it may be relative to voting procedures used for the pandemic general election of November 2020, is not the functional or moral equivalent of America’s version of apartheid that existed from the death of Reconstruction until the Civil Rights Era. Having written in Ballot Battles about the electoral terrorism that existed in the South at the hands of the white supremacist “Redeemers” in their tragically successful effort to negate the implementation of the Fifteenth Amendment–including the horrific Colfax Massacre in the fight over the 1872 election–I think we should calibrate our critique of the present moment to the severity of the current conditions. There is no doubt in my mind that we are dangerously in a period of backsliding, relative to the gains of the Civil Rights Era of the 1960s, but I personally think it a mistake to call the current degree of backsliding “21st century Jim Crow”; thankfully, I don’t think we have backslid that far (at least not yet), and I think there’s a danger of being the proverbial boy who cried wolf if we call the current situation a new version of Jim Crow.
Perhaps more significantly, I also think using the Jim Crow label to describe what’s happening right now presents a risk of invoking the less apt historical analogy and thus misdiagnosing the nature and severity of the current threat. “Electoral McCarthyism” is how I characterize Trump’s Big Lie and the effect it is currently having on our capacity to conduct free and fair elections, including the slew of state legislation that potentially threatens this capacity. I call it “Electoral McCarthyism” because the fabrication of disinformation about vote tallies seems comparable to McCarthy’s fabricated claims about Communists in the State Department and Army. (Giuliani’s press conferences last fall in particular seemed analogous to McCarthy’s false claim to have a list of State Department names). Trump’s charismatic demagoguery and the GOP’s incapacity to resist it also seems similar to the GOP’s incapacity to counter McCarthy at the heights of his charismatic demagoguery. “Red Scare” McCarthyism lasted four years, until McCarthy self-destructed in the Army hearings. When will “Electoral McCarthyism” end and what will be its downfall? Gabe Sterling’s “someone will get killed” speech on December 1 did not end this Electoral McCarthyism. In fact, not even the deaths at the January 6 insurrection did. The last six months tell me that the virulence of Electoral McCarthyism has only gotten worse and collectively we haven’t yet figured out how to defeat it.
Moreover, my historical research causes me to believe that this Electoral McCarthyism is an unprecedented threat to American democracy, never before experienced in our history, neither before nor since the Civil War. “21st century Jim Crow” suggests that we are just reverting to a place we’ve been before. But in all the electoral disputes I studied for Ballot Battles, there was nothing like the Electoral McCarthyism of Trump’s Big Lie. Yes, we’ve had terrible fighting over electoral outcomes, including the Hayes-Tilden debacle. But to my knowledge, we’ve never had the sheer fabrication of an alternate electoral reality that is Trump’s claim of having been robbed of a victory that was rightly his (with his supporters still believing that fabricated alternative reality, or actually non-reality). Richard Hofstadter famously wrote about McCarthyism in The Paranoid Style in American Politics, making the point that periodically America has succumbed to this kind of collective paranoia–McCarthyism was not the first. But my point is that Electoral McCarthyism is the first time that this kind of paranoia has affected ballot counting, and that seems to me a uniquely dangerous condition for our democracy.
If this analysis is correct, it’s not good enough just to have a reinvigorated Voting Rights Act, as important that is. Because the current situation is not Jim Crow 2.0, our remedy must be something other than (or in addition to) a VRA 2.0. Because Electoral McCarthyism is unprecedented, the remedy also may need to be a historically first-of-its-kind (perhaps including, for example, impartial electoral tribunals of the kind that exist in other democracies, but not in the U.S.).
I’ve posted a draft of this paper on SSRN. Here’s the abstract:
Round-robin voting uses ranked-choice ballots but calculates which candidates are most preferred by a majority of voters differently from instant-runoff voting. Like a round-robin sports competition, round-robin voting determines how each candidate fares against every other candidate one-on-one, tallying the number of wins and losses for each candidate in these one-on-one matchups. If necessary to break a tie in these win-loss records, round-robin voting looks to the total number of votes cast for and against each candidate in all of the one-on-one matchups—just as round-robin sports tournaments look to an equivalent total point differential statistic to break ties. When used in a primary election as the method to identify the top two candidates deserving to compete head-to-head as finalists in the general election, comparable to the use of round-robin competition as the preliminary stage of a sports tournament, round-robin voting is the electoral system best able to implement the democratic idea of majority rule.
I was delighted to have the opportunity to present an earlier draft at the University of Wisconsin Law School’s “Public Law in the States Conference” on June 23, and I’m looking forward to working with the Wisconsin Law Review on preparing the paper for publication. This draft will be revised before submission to the law review’s editors at the end of August, and therefore I very much welcome any comments that readers might email me before then.
Washington Post summarizes. Given the Republican non-participation, this doesn’t sound like an effective strategy to overcome a filibuster. USA Today reports that Senate Democrats, essentially abandoning S1, will turn instead to VRA reform “this autumn”; if true, this presumably means giving up any attempt to curtail partisan gerrymandering before new maps are drawn for the 2022 midterms. It is astonishing to me that Democrats would cede the issue of partisan gerrymandering before the midterms; if Republicans win the House solely because of partisan gerrymandering, as some of them brazenly are hoping, Democrats will have no one but themselves to blame as a a result of how they’ve mishandled the issue of electoral reform since January 6. In my view, if Democrats were to act consistently with their professed belief that American democracy is facing an existential crisis (as President Biden argued in his speech last week), Democrats would be prioritizing the need for Congress to enact a measure to prevent partisan gerrymandering from distorting the maps to be drawn for the 2022 midterms. (I wholeheartedly agree with Dave Wasserman, who tweeted last week that gerrymandering rather than voting restrictions of the kind legislated in Georgia, or under consideration in Texas, is much more likely to determine which party prevails in the midterms.)
For those of us looking ahead to January 6, 2025, and the possibility that Congress will repudiate the result of a presidential election in a way that was attempted this past January 6 but did not succeed (this time), a House controlled by one political party solely because of partisan gerrymandering could make all the difference between the survival or death of American democracy. When one considers that there’s time before November 2022 to worry about voting rights (in terms of casting and counting ballots), but there’s almost no time left to address the problem of partisan gerrymandering before new maps will be drawn based on census data soon too be released, I would have thought that congressional hearings now should focus on ways to tackle partisan gerrymandering, rather than today’s field trip to Georgia.
Geoffrey Skelley at 538 has a piece on Lee Drutman’s very important new report analyzing the effect of primary elections on general election outcomes. (I mentioned this report in a previous blog post.)
As Skelley explains, Drutman’s report is based on extensive empirical data and questions whether the rules governing primary elections contribute to the increased polarization of electoral results. In this respect, Drutman is running counter to others who argue that primaries are a main driver of skewed politics, causing outcomes artificially distorted compared to a baseline of what voters as a whole actually want. Drutman’s case is very detailed and deserves more consideration than I will give it here.
I want to highlight one point from Skelley’s useful summary of, and commentary, on it. Skelley, like Drutman himself, observes that Alaska’s new “top four” system might be more effective at combatting polarization than previous efforts at primary reform, like California’s “top two” system. (Alaska will use Instant Runoff Voting in its general election to identify the winner among the top four candidates who advance from its nonpartisan primary.) But Skelley appropriately cautions, using Senator Lisa Murkowski’s upcoming 2022 race as an example, that the Alaska system may be no more able to counteract the increased polarization of voter preferences than California’s “top two” system.
In this regard, it’s worth noting that an alternative electoral system, Round-Robin Voting, would handle polarization very differently from either California’s “top two” or Alaska’s “top four” systems. (Round-Robin Voting uses ranked-choice ballots but it calculates the relative strength of candidates differently from the Instant Runoff Voting methodology used in Alaska and elsewhere.) I have written about Round-Robin Voting, including comparing it to California’s “top two” system and Alaska’s new “top four” alternative, as part of a paper arguing that Congress should adopt a “majority winner” rule that would require states to experiment among different majority-winner electoral systems. (California’s top two, Alaska’s top four, and Round-Robin Voting would all qualify, but the combination of partisan primaries and plurality-winner general elections would not.) This video uses graphics to show how Round-Robin Voting treats polarized voting preferences very differently from either the California or Alaska system.
One aspect of the video deserves mention in connection with Skelley’s piece. Skelley observes that, contrary to conventional wisdom, recent studies suggest that primary voters are not ideologically more polarized than general election voters. If this is true, it’s not enough just to “fix” primaries by changing the rules governing them; instead, it’s necessary to consider more broadly how primary elections interact with general elections in eventually producing a single winner from a field of multiple candidates across the ideological spectrum. The comparison of Round-Robin Voting with the California and Alaska systems in the video (and in a separate paper on which this video is based, to be posted shortly on SSRN) assumes that the electorate is the same ideologically for both the primary and general elections; even so, Round-Robin Voting reaches a very different result given the same set of polarized preferences from voters than does either the California or Alaska systems. Therefore, as one considers the implications of Drutman’s important report on primaries, one should consider not only the potential of Alaska’s top-four system and Skelley’s cautionary note about it. Also relevant is the possibility of Round-Robin Voting as an alternative way to address the issue of increased polarization.
Thanks, Dan, we so miss you at Ohio State, but are glad to reconnect whenever there’s an opportunity. Thanks, Rick, for this opportunity to join the ELB blogging team.
As I start, the Senate Rules Committee hearing today is top of mind. It’s an unusual field hearing in Georgia. As the AJC reports, Committee Chair Amy Klobuchar is taking the voting rights show on the road in the hope of generating public pressure for some sort of movement in the Senate on the issue. (Carl Hulse of The NY Times has a profile of Klobuchar’s effort to elevate the committee’s visibility.)
I’ll be interested to see if this strategy works. I’m hardly an expert in Senate politics, but I would have thought that a better move for Democrats right now would be to focus on the issue of partisan gerrymandering, given that as a matter of timing the need to draw new maps for the 2022 midterms occurs before issues relating to the casting and counting of ballots must be addressed. It also seems to me that it would be harder for Senate Republicans to defend a filibuster if a bill focused solely on combatting unjustifiable partisan distortion of district lines. And if Democrats were to be successful in convincing their reluctant colleagues to modify the filibuster rules, perhaps just to convert the filibuster to the “talking” form that would require Republicans to consistently come up with the 41 votes to block the bill, it might be hard for GOP Senators to sustain the effort to protect the raw power to engage in partisan gerrymandering at the expense of the will of the electorate. But I don’t anticipate gerrymandering being a focus of today’s hearing; instead, I expect it to center on the kinds of casting and counting issues that have dominated public discussion of potential electoral reform over the last several months.
Dan links to an analysis from the Washington Post citing figures from the Voting Rights Lab about “18 states” that “enacted 35 laws with provisions that create new hurdles to vote.” The piece has some important depth-of-treatment looks at what’s happening in some states. But as with any effort to aggregate figures and present big numbers, I think there is less happening under the hood in other states.
Some of the things the Voting Rights Lab identifies are not laws. Take Michigan’s Senate Resolution 25, which is the sense of the Michigan Senate that Congress should not enact H.R. 1 (which, I assume, Congress will dutifully ignore), not a law.
Others are pretty minor and may not merit the label “Anti-Voter” as given them. Consider Nevada’s Senate Bill 84, which passed 20-0 (1 excused) and 40-0 (1 absent) in each chamber and raises the maximum size of precincts from 3000 to 5000 registered voters. As the sponsor the bill explained:
Testimony from the Clark County and Washoe County registrars of voters indicated that, in some cases, certain areas of their counties could accommodate precincts with more than 3,000 active registered voters–the current statutory maximum. Moreover, under the “vote center” model used by Nevada’s counties for the past few election cycles, assigning voters to a single polling location is no longer necessary, thereby allowing for larger precincts. The registrars further noted that being able to assign more voters into one precinct would be helpful in avoiding the splitting into multiple precincts of certain high-density population areas, such as larger apartment complexes or certain neighborhoods. Finally, it was noted that since the proposed increase sets forth a maximum number of active voters per precinct, jurisdictions such as rural counties could continue to create smaller precincts as needed, or leave existing precincts unchanged.
Is this an “Anti-Voter” bill, as labeled by the “Voting Rights Lab” website?
Another is Utah’s House Bill 197, which changes the date that voters may switch parties ahead of a primary from the end of the registration deadline period, to March 31. The sponsor of the bill explained they chose this date, which comes after the filing deadline (so voters know all the candidates) and after precinct caucuses, but it reduces “gamesmanship” of voters who switch parties very late in the process. The bill also does not apply to unaffiliated voters or new voters, only those who previously registered with a party and seek to switch very late. They can vote–they simply must vote in their previously-registered party’s primary.
I could go on elsewhere, but digging into the text of the bills reveals, I think, a much more nuanced portrait than reporting some aggregate number of “anti-voter” bills.