Wildenthal: Time for a DEFEND Act

The following is a guest post from Bryan Wildenthal:

In this time of extreme peril for voting rights and basic election integrity, and given Congress’s obvious inability to pass any major new federal voting or election provisions, I urge consideration of a simple, procedural, defensive bill I call the “DEFEND” (DEFend Elections and National Democracy) Act.

While perhaps a long-shot, I believe this could gain support even from senators who generally favor the filibuster, as it would not enact any new substantive federal policy or mandate, and indeed would promote (at the state level) the ideal of bipartisan consensus cited by filibuster supporters. At any rate, it’s worth trying.

I may have missed it, but has anything like this been discussed in election law circles?

For the proposed draft bill itself, see here — for my JURIST.org essay advocating and explaining it in more detail, see here — and see below for a brief summary of five key points:

#1. The DEFEND Act is carefully designed as nonpartisan, and purely defensive, even conservative (“federalist”) in nature. It would not enact any new federal mandate or policies on voting or elections. It merely works with existing state laws, and would require state legislatures to obtain minimal bipartisan support (at least one third of the members of each of the two largest parties represented in each state legislative house), for any new or amended state laws (since January 2021), affecting federal elections (to avoid tactical evasion, party affiliation could be defined as of the time of a member’s last election).

#2. The DEFEND Act would wipe out, at one swoop, all partisan state-level attacks on voting rights and election integrity passed since January 2021, and block any future legislation of that sort. It would also effectively block any partisan gerrymandering of Congress.

#3. The DEFEND Act would preserve the independent districting commissions in the ten states that currently have them, and protect them against legal challenges. It would encourage (but not require) other states to adopt such commissions. In states that haven’t and don’t, the bill would simply require bipartisan support for any new congressional district maps.

#4. Most Republicans will predictably oppose the DEFEND Act (even though it’s totally nonpartisan and fair), because they know, if they’re prevented from gerrymandering congressional seats based on the 2020 census (as they did after the 2010 census), they will lose the unfair partisan advantage they currently have.

#5. Given predicted partisan opposition, passing the DEFEND Act through Congress will require an extremely limited bypass or exception to the Senate “filibuster” rule. But it does not require abolishing or weakening the filibuster overall. As the JURIST essay explains, the DEFEND Act (which could bypass the filibuster on a “one-time-only” basis), is actually profoundly consistent with the philosophy of bipartisanship expressed by those (such as moderate Democratic Senators Joe Manchin and Kyrsten Sinema) who support preserving the filibuster overall. The DEFEND Act merely requires similar bipartisan consensus at the state level.

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