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.
From WHYY in Philadelphia:
“The commission in charge of redrawing Pennsylvania’s House and Senate maps has voted 3-2 to make a major change to the redistricting process: It will no longer count many state prisoners as residents of the districts where they’re incarcerated, but rather as residents of the districts where they originally lived.
. . . .
It fell to the committee’s court-appointed tiebreaker, longtime University of Pittsburgh law professor Mark Nordenberg, to make the decision. He noted that this is a big change in a redistricting process already marred by late census data, and the logistics will be time consuming and tricky. But ultimately, he voted for change.”
The decision does not affect federal election districts.
From Jonathan Tamari and Jonathan Lai at the Philadelphia Inquirer: An interesting in-depth analysis of the potential political consequences of demographic changes in Pennsylvania—sadly, behind a firewall.
Two key points beyond the headline:
- “Philadelphia and suburban Bucks, Chester, Delaware, and Montgomery Counties added more than 209,000 people in the last decade. That’s a 5.22% increase, while the rest of the state grew just 1.05%.”
- The five counties around Harrisburg are also growing: “The population in these five counties increased by 107,000, a 6.7% growth that was among the state’s highest.”
One potential implication (not discussed in the article): As political power shifts to relatively wealthy and politically well-organized suburbs, Pennsylvania may begin to join those states, like Minnesota, Wisconsin, and Maine, that tend to see a less radical drop in turnout during midterm elections. “About half of the vote in a Democratic primary now comes from the Philadelphia region”—i.e., from these counties. This will give those voters “massive influence” in state-wide races, but is also likely to impact voter turnout.
Stories like this show how rare fraud is–and how hard it is to get away with even on the very smallest of scales. It’s also a low turnout, narrow margin (i.e., 1), local election, where the risk of fraud is higher. From the Los Angeles Times:
A Compton city councilman was arrested Friday morning and charged with conspiring to rig votes to secure his victory in an election he won earlier this year by just one ballot, officials said.
Isaac Galvan, 34, was one of six people arrested Friday and charged with conspiracy to commit election fraud and bribery, according to a criminal complaint filed by the Los Angeles County district attorney’s office.
Prosecutors allege Galvan conspired with Jace Dawson, one of his opponents in an April primary for Galvan’s council seat, to direct voters from outside the council district to cast ballots in the race, according to the complaint.
At least three improper ballots were counted in the runoff election, ultimately swinging the race, according to the complaint. Galvan raked in 855 votes while Andre Spicer, a Compton native and entrepreneur, tallied 854 ballots in a June runoff election, records show.
Prosecutors also charged Dawson, Kimberly Chaouch, Toni Sanae Morris, Barry Kirk Reed and Reginald Orlando Streeter with conspiracy to commit election fraud. Chaouch, Morris, Reed and Streeter all voted in either the primary or runoff for the Compton City Council’s second district, despite not living there.
Last month here at ELB, I expressed some skepticism about efforts to label some laws as “suppression,” voting restrictions, and the like. I continue that over at The Conversation, here.
Katarina Sostaric at Iowa Public Radio:
One year after Iowa Gov. Kim Reynolds signed an executive order restoring voting rights to an estimated 35,000 to 45,000 Iowans with past felony convictions, about 5,000 of the newly eligible individuals have registered to vote. Voting rights advocates say the state should put more effort into reaching people to let them know they can vote.
A report from The Marshall Project in June put the number of registered voters at 5,000, and the Iowa Secretary of State’s office told IPR 4,127 people had registered as of January 29. Iowa SOS spokesperson Kevin Hall told IPR it would cost $160 to provide a more recent number.
According to Hall, 3,179 of these newly eligible voters voted in the 2020 election.
The Hill reports on Manchin’s conversation on CNN. I haven’t had a chance to watch the video yet, but when I do I’ll look to see if the separate idea of a “talking filibuster” came up.
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.