Bryan H. Wildenthal, Professor Emeritus at Thomas Jefferson School of Law and recent Visiting Professor at the University of San Diego School of Law, explains how Congress can enact a simple one-page bill to stop partisan gerrymandering and attacks on voting rights and elections ...
America faces unprecedented and existential threats to voting rights, free and fair elections, and the very future of our democracy. Congress must take urgent action now — well within its constitutional powers — to stop these threats in their tracks. All it would take is a simple one-page bill. I have proposed a draft here.
Do not be misled by the dominant political and media narrative that we face an all-or-nothing divide between enacting major new federal voting legislation — perhaps abolishing the Senate filibuster in the process — or doing nothing. That is a false choice. My purely defensive and procedural proposal would avoid any new federal election regulations. Yet it would sweep aside all recent and future partisan state assaults on voting and permanently halt efforts to gerrymander Congress. Finally, the Senate can pass it without weakening the filibuster’s requirement of bipartisan support for new substantive legislation.
It is painfully disappointing that the proposed “For the People Act” (FTPA) has been killed by filibuster. But let’s be realistic. At more than 700 pages, that blockbuster bill was already a Titanic sinking of its own weight. Some of its ambitious provisions raise serious constitutional questions and others may be difficult to implement. Senator Joe Manchin (D-WV) took the heat for criticizing it publicly, but many Democrats nursed private doubts all along.
I support the FTPA, but it falls surprisingly short in some ways. Even if enacted, it would fail to remedy many disturbing changes in state laws. A fact shockingly ignored in most news coverage is that some key provisions on gerrymandering would not even take effect until a decade from now — after the 2030 census! Yet we must stop gerrymandering now — this year.
Republicans aim to perpetuate and even worsen the partisan gerrymandering they rammed through many state legislatures after the 2010 census. Congress has undisputed power to block that. If Congress fails to act, Republicans will hand themselves an outrageously unfair advantage in the 2022 elections — ensuring their control of the U.S. House of Representatives, probably for the next decade, even if more voters support Democrats (exactly what happened in 2012).
Republican state legislators have enacted and continue to propose a slew of restrictions on ballot access — described by the nonpartisan Brennan Center as “a full-fledged assault on voting.” Many Republicans across the country have embraced the Big Lie of former President Trump — either dishonest or delusional, in any event devoid of rational basis — that the 2020 election was “stolen” from him. Never mind that we continue to learn new and more disturbing details of how Trump, having lost the election by more than 7 million votes and a wide margin in the Electoral College, tried systematically to subvert and steal it himself — culminating in his incitement of the violent attempted coup d’état of January 6, 2021.
State legislatures have gone further to attack the election system itself, with new laws threatening harsh penalties for election workers and disrupting election administration. Professor Richard Hasen, an election law expert, calls this a “new, more dangerous front” that is “going to be much harder to counteract… At stake is something I never expected to worry about in the United States: the integrity of the vote count.”
We have seen bigoted death threats against dedicated election officials (many of them Republican), even against their families and children, for simply trying to honestly do their jobs. Extremist Republican candidates in several key swing states, committed to Trump’s Big Lie, have an excellent chance to seize control of top state election offices in 2022. That would put foxes in charge of henhouses. How many honest election workers will simply give up and quit?
The proposed “John Lewis Voting Rights Act” (JLVRA) is more narrowly focused than the FTPA. It is designed to restore the 1965 Voting Rights Act provision that some changes in voting laws must get “preclearance” from a federal court or the U.S. Attorney General — a requirement neutralized by the Supreme Court’s controversial 5–4 decision in Shelby County v. Holder (2013). The JLVRA is critically important for many reasons, but even if it can overcome the filibuster (doubtful), it would be too little and too late to adequately block the threat of gerrymandering and most of these dangerous new state laws.
Could even my minimal proposal overcome the filibuster, which requires 60 votes to pass most bills? Several Democratic senators, including Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, have so far refused to consider bypassing the rule. I explained here why the “Fake Filibuster” (as it should be known) is a disastrous threat in itself to American democracy. I could not disagree more strongly with Manchin and Sinema. But I respect their sincere opposition to ditching the rule altogether.
Ironically, it is precisely because of their principled beliefs in favor of the rule that they should allow a rare (perhaps unique) exception to pass the short and simple “DEFEND” Act (or some similar bill).
This proposal embodies the very principle of bipartisanship that causes Manchin and Sinema to defend the filibuster. As the title conveys, it is purely defensive. It would not affirmatively impose any new substantive federal policies on the states. Instead, it merely takes as a starting point state election laws in effect on January 6, 2021 — a date proposed partly for symbolic reasons but mainly because it postdates the 2020 election and predates the spring legislative season that started spawning the troubling new laws.
In order to win support for such an extremely narrow one-time exception to the filibuster rule, Democrats could write into the change a guarantee that the rule would otherwise remain unchanged for the rest of this Congress. I think even some conscientious Republican senators might support this idea.
The DEFEND Act respects decentralized “federalism” and state autonomy. The Constitution grants Congress almost plenary power to regulate federal elections (see Article I, Section 4, Clause 1), but Congress has generally refrained from doing so. By the way, the state laws in place on January 6 can hardly be said to favor Democrats. Republicans have enjoyed dominant control of most state legislatures since 2010 — control they have maintained with the help of the partisan gerrymanders they rammed through a decade ago.
The proposal respects the independent districting commissions already adopted by ten states (both “red” and “blue”), to end gerrymandering. It also shields them from potential legal challenges by having Congress affirm and reenact them. That is essential given the risk that the Supreme Court may overrule its 5–4 decision in 2015 upholding Arizona’s independent commission (are you paying attention, Senator Sinema?).
Two members of the narrow majority in that crucial Arizona case are gone: retired Justice Anthony Kennedy and the late Justice Ruth Bader Ginsburg. Two of Trump’s three appointees — Justices Neil Gorsuch and Brett Kavanaugh — embraced the legal theory of the 2015 dissenters in two 2020 election cases from Wisconsin and Pennsylvania. Justice Amy Coney Barrett may follow suit. That legal theory was at the heart of many Trumpist Republican attacks on voting and election reforms during 2020 in response to the Covid-19 pandemic.
The DEFEND Act encourages (but does not require) other states to adopt similar independent commissions and offers them the same shield of protection. The legal theory embraced by the dissenters in the Arizona case, and by Justices Gorsuch and Kavanaugh in 2020, does not affect Congress’s own power to regulate federal elections. It limits only alleged incursions on the powers of state legislatures by state courts or ballot referenda.
But how, you may ask — if my proposal is so minimal and respectful of state autonomy — could it possibly remedy the current state-level threats? The answer is very simple. It would allow state legislatures to amend (or enact new) laws governing federal elections, differing from those in effect on January 6, only if they do so with bipartisan support (at least one-third of the members of each of the two largest parties represented in each legislative house). No party should be able to ram through changes affecting federal elections with a bare partisan majority — or supermajority, noting that both Democrats and Republicans enjoy two-thirds and even three-fourths supermajorities in some state legislatures.
Changes in voting and election laws are no doubt needed from time to time. The proposal would thus not freeze current laws rigidly in place. But if legislative majorities need to enact genuinely harmless “good government” reforms or amendments, they should be able to attract at least minimal (one-third) support from the opposition party.
This requirement to obtain bipartisan support will force Democrats and Republicans to agree on compromise district maps that avoid gerrymandering in favor of either party. This will guarantee a fundamentally fair and even playing field for the 2022 midterm congressional elections — without any new federal rules or mandates (much less anything as complex as the FTPA).
The DEFEND Act is strictly nonpartisan. It would force Democrats and Republicans alike to play fairly by the same rules. It would dash the hopes of Democrats as well as Republicans to gerrymander congressional seats in key states — or enact partisan legislation affecting federal elections. Without it, Democrats will have complete control over redistricting in two large states: Illinois and New York.
Most Republicans will predictably oppose the DEFEND Act because it will block their hopes to gain an overall partisan advantage by gerrymandering at least four states where they otherwise have complete control over districting: Texas, Florida, Georgia, and North Carolina. The total number of seats in those states in the House will grow from 90 to 94 in 2022. Republicans will calculate they can gain more seats in those and other states than they would lose in Illinois and New York (and perhaps a few other states) if both parties are allowed to gerrymander.
Illinois and New York each lost a House seat in the 2020 census, going from a total of 45 to 43 — and 32 of their seats are already Democratic, not leaving much room to gain. By contrast, there are only 55 current Republican seats in Texas, Florida, Georgia, and North Carolina, leaving ripe pickings for Republicans if they are given free rein to gerrymander the new total of 94 seats in those states (not to mention in many other states).
The DEFEND Act may thus provide some help to Democrats, but only in the sense that it would block Republicans from seizing a far greater and totally unfair advantage. Even some Republican senators in states where federal gerrymandering is not a major issue, like Lisa Murkowski of Alaska, Susan Collins of Maine, and Mitt Romney of Utah, might search their consciences and support it. They witnessed the January 6 attack on our Constitution and democracy. They voted to convict Trump for inciting it. They can see this proposal is utterly fair, minimal, and nonpartisan.
Senators Manchin and Sinema have published editorials defending their overall stance on the filibuster. But Manchin concedes in his essay that “bipartisan action on voting reform would go a long way in restoring the American people’s faith in Congress.” Sinema says in hers that she is “focused on questions that matter most in th[e] daily lives” of “everyday Arizonans.”
Senator Manchin, my proposal is “bipartisan” by definition. It promotes the most defensible rationale for the filibuster itself, by requiring bipartisan agreement at the state level to preserve the integrity of federal elections.
Senator Sinema, “everyday” people care about protecting their voting rights and fair elections too, not just jobs or business or health care. They know, as you do, that those other things are endangered if Congress fails to defend democracy. You worry that bypassing the filibuster to advance progressive goals would risk “whipsawing reversals.” That’s a risk I’d take since the alternative is never achieving such goals in the first place.
The filibuster doesn’t do much to protect past achievements either. As I have noted, it didn’t stop Republicans in 2017 from coming within a single vote of destroying Obamacare and Medicaid. No “reversal” could overcome President Biden’s veto until 2025 at the earliest — and “everyday” people would get a lot of help in the meantime. Whether Biden or any Democrat has a fair chance to earn re-election, and serve until 2029, may well depend on this Congress taking action this year.
But those are broader debates for another day. The issue now is starkly simple and basic. Is allowing a minimal one-time exception to the filibuster rule, far less troubling than the notorious “budget reconciliation” loophole, justified to defend the constitutional foundations of American democracy? Failure is not an option. The risk of standing by and doing nothing is unacceptable.
Bryan H. Wildenthal is Professor Emeritus (and will serve as Visiting Professor, Spring 2022) at the Thomas Jefferson School of Law in San Diego. He recently served as Visiting Professor (Spring 2021) at the University of San Diego School of Law. He is also an attorney admitted to the Bar of the U.S. Supreme Court. His scholarly publications are available here.
Suggested Citation: Bryan H. Wildenthal, Defend Democracy Before It’s Too Late: A One-Page Bill Would Do It, JURIST Academic Commentary, June 26, 2021, https://www.jurist.org/commentary/2021/06/bryan-wildenthal-defend-democracy-bill/.
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