Slimming Down Democracy Reform

Ned Foley and Rick Hasen have each written pieces arguing that H.R. 1—the omnibus electoral reform bill recently passed by the House—should be significantly narrowed. Ned would prefer a package combining a ban on partisan gerrymandering (a Democratic priority) with a nationwide voter ID requirement (favored by Republicans). Alternatively, Ned would prefer a nationwide non-retrogression rule, barring states from restricting any existing voting opportunities. For his part, Rick would keep some of H.R. 1’s voting and redistricting provisions, add a new coverage formula for the Voting Rights Act, but scrap H.R. 1’s sections on campaign finance, ex-felon reenfranchisement, Supreme Court ethics, and presidential tax returns.

Ned’s and Rick’s proposals are both motivated, in part, by a legislative calculation. They think their ideas would be more likely than H.R. 1 to attract the votes of Senate Republicans—maybe even the ten such votes it would take to break a filibuster. Ned writes that his package could “secure the necessary 60 votes for Senate passage.” Similarly, Rick argues that his blend of parts of H.R. 1 with a new VRA coverage formula could “assur[e] that there are more than 50 senators—including perhaps some moderate Republicans—to support the bill.”

Now, Ned and Rick might be right. Maybe H.R. 1 won’t win significant Senate Republican backing—but their proposals would. Every shred of evidence I’ve seen, however, suggests that their ideas would get exactly as many Senate Republican votes as H.R. 1: zero. No Senate Republican has expressed any interest in (much less support for) assigning congressional redistricting to independent commissions: a key plank of both Ned’s and Rick’s compromises. Nor has any Senate Republican advocated any new federal measure protecting the franchise (again, a crucial element of both Ned’s and Rick’s packages). To the contrary, elite Republican opinion has been virtually unanimous in defending the prerogative of states to burden voting as they see fit. And when the House debated a new VRA coverage formula in 2019, just one Republican voted in favor. Mitch McConnell then consigned the bill to a quiet death, declining to take any Senate action on it.

The implausibility of attracting significant Senate Republican support is nicely illustrated by National Review writer Dan McLaughlin’s response to Rick’s column. Requiring states to offer at least two weeks of early voting? Only if federal law “also impose[s] maximums” on early voting. Enacting a new VRA coverage formula? “[T]he entire preclearance project is a bad idea because it gives too much arbitrary power to the federal executive branch.” Establishing independent redistricting commissions? “This is a non-starter; conservatives simply do not trust unelected ‘nonpartisan’ entities.” Which Senate Republican(s) would react differently from McLaughlin? Especially in the face of overwhelming pressure to hold the party line and deny Democrats a victory on an issue as important as electoral reform?

To be fair, Rick has another legislative rationale for his proposal: maintaining the unity of Senate Democrats. In his view, excising H.R. 1’s provisions on campaign finance, Supreme Court ethics, and presidential tax returns would prevent moderates like Joe Manchin and Kyrsten Sinema from defecting. But I’m unaware of any evidence that these policies threaten to “pull apart majority support in the Senate.” Campaign finance reform is favored by a supermajority of the public. This supermajority includes Manchin, who signed into law a public financing program as governor of West Virginia and has cosponsored a Senate bill calling for small donor matching. As for Supreme Court ethics and presidential tax returns, they’re tiny pieces of H.R. 1, accounting for just two of its nearly four hundred sections. It defies belief that any Senate Democrat would scuttle the whole project over such relative trivialities.

That said, I agree with Rick that it’s almost certain that not every Senate Democrat supports every aspect of H.R. 1. Fortunately, the Senate’s choices aren’t limited to accepting H.R. 1 as is or letting the bill collapse. The Senate can also amend the bill—extensively—to ensure that Manchin’s and Sinema’s and other Democrats’ concerns are fully addressed. This critical revision process is only now beginning. Where it will lead is anyone’s guess. It could be a set of policies like the ones Ned or Rick outlined. Or it could be any of a thousand other destinations. The point is that Senate Democrats themselves are the best judges of what they can and can’t tolerate in an electoral reform bill. Outside efforts to predict their preferences are likely to be inaccurate.

Two final cautions about enacting a new VRA coverage formula instead of H.R. 1 (which neither Ned nor Rick recommends). First, reinstituting preclearance is at least as legally controversial as anything in H.R. 1. While I couldn’t disagree more strongly with the Shelby County Court, it did say that the argument that “the preclearance requirement [itself] is now unconstitutional” has “a good deal of force.” Second, as potent as Section 5 of the VRA was, it didn’t reach (1) most of the U.S. outside the South, or (2) most partisan gerrymanders in the South. So an America with a revived preclearance regime—but no other reforms—would be one where bad actors could still freely suppress votes and gerrymander in most of the country, and where gerrymandering would still run rampant even in the South.

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