The United States has a president who received nearly 3 million fewer votes than his Democratic opponent. Currently, over half the country lives in just nine states, which means that less than half of the population controls 82 percent of the Senate. It also means that Republicans hold a majority in the Senate despite the fact that Democratic senators represent more than half of the American people.
Intentional efforts to make it harder to vote, such as voter ID laws, are increasingly common throughout the states — and the Supreme Court frequently approaches such voter suppression with indifference. Gerrymandering renders many legislative elections irrelevant — in 2018, Republicans won nearly two-thirds of the seats in the Wisconsin state assembly, even though Democratic candidates received 54 percent of the popular vote. Wealthy donors flood elections with money, as lawmakers spend thousands of hours on “call time,” dialing the rich to fund the next campaign.
And looming over all of this is the problem of race. In some states, Republican lawmakers write voter suppression laws that target voters of color with, in the word of one federal appeals court, “almost surgical precision,” knowing that a law that targets minority votes will primarily disenfranchise Democrats.
Congressional Democrats are acutely aware of many of these problems. And they’ve devised some fairly aggressive plans to combat these attacks on the franchise.
The first bill House Democrats rolled out after they took charge of the House in 2019 was the “For the People Act,” which would be the most significant voting rights legislation since the Voting Rights Act of 1965 if it were to become law (that bill is often referred to as “HR 1,” its official designation in the House’s internal system for keeping track of bills). A companion bill, HR 4, would strengthen the Voting Rights Act and restore many parts of the law that were neutralized by the Supreme Court.
As several voting rights advocates told me, these two bills represent a hard-won consensus among Democrats, and among the voting rights community more broadly, on what must be done to shore up American democracy. It’s “taken a long time to build consensus” around this package of proposals, according to Wendy Weiser, head of the democracy program at the Brennan Center for Justice and one of the advocates who helped build that consensus. And the two House bills that emerged would likely be the most comprehensive voting rights legislation ever enacted by Congress.
And yet, if enacted, House Democrats’ voting rights legislation would still fall short of addressing the major challenges facing our democracy. The bills do little, for example, to address Senate malapportionment. And nothing to prevent the Electoral College from handing the presidency to popular vote losers.
If Democrats’ polling leads hold through November 3, they might have the majorities they need to fix much of America’s broken democracy. But to do so, they will have to think big — even bigger than they are already thinking.
Below are 11 reforms that Congress could enact in a potential Joe Biden administration. Many of these reforms are included in legislation the House passed. But the list also rather pointedly includes solutions for problems that are not adequately addressed by these two bills.
Some of these proposals may seem radical, but the ambition of these proposals speaks to the scale of the problems facing us. American democracy is fundamentally broken. And it needs a radical overhaul to ensure that the United States has free and fair elections in the future.
The first batch of ideas all aim to do one thing: secure our right to vote. Voter suppression — from voter ID laws to polling place closures to voter roll purges — have compromised many Americans voters’ rights. Strengthening our democracy begins with restoring and bolstering those rights.
If elected president, Biden could potentially do more to protect the franchise than any chief executive since Lyndon Johnson. Or, Biden could end up with few, if any, legislative accomplishments.
It all comes down to what a Democratic Congress could pass. Should Democrats win a majority in both houses, eyes will turn to the Senate, which will have to choose between unraveling the filibuster — which typically prevents any legislation from becoming law unless it is supported by 60 senators — and unraveling hope that major voting rights legislation, or any other big progressive legislation, will become law.
To win a filibuster-proof majority, Democrats would need to get to 60 seats from the 47 they currently have — and even if they get that (which is highly unlikely), that would only mean that they had enough votes to pass legislation supported by the most conservative Democrat in the Senate. Barring a historic electoral calamity for the GOP, the Republican Party will have enough votes to filibuster any voting rights bill that reaches the Senate floor, unless Democrats vote to strip away the filibuster.
There are signs that Democrats are starting to understand this problem. At Rep. John Lewis’s (D-GA) funeral in July, former President Barack Obama called for eliminating the filibuster, which he called a “Jim Crow relic,” if necessary to enact voting rights legislation. Sen. Chris Coons (D-DE), once one of the most vocal Democratic defenders of the filibuster, now appears likely to vote to kill it if Republicans use it to sabotage a Biden administration. Biden himself signaled support in July for filibuster reform if Senate Republicans are too “obstreperous,” although his advisers have cast doubt on the prospect.
The success of a Biden presidency could rest on whether the Senate has the votes to make Republican obstreperousness irrelevant.
A perennial problem in voting rights litigation: When a state enacts an illegal restriction on the franchise, it takes courts several years to strike that law down. In Virginia House of Delegates v. Bethune-Hill (2019), for example, the Supreme Court allowed a lower court decision invalidating an unconstitutional racial gerrymander to go into effect. But that was after the state held several elections using these illegal maps.
As Lisa Cylar Barrett, director of policy for the NAACP Legal Defense & Educational Fund told me, we need a “mechanism that allows for the screening” of voting laws “before elections happen.”
Which brings us to Section 5 of the Voting Rights Act. Section 5 required states and localities with a history of racial voter suppression to “preclear” any new voting rules with the Justice Department or with a federal court in Washington, DC. The idea was to catch efforts at voter suppression before they disenfranchise voters, and before a state can run an election using racist rules.
But the Supreme Court effectively deactivated Section 5 in Shelby County v. Holder (2013). Though the Court’s 5-4 decision in Shelby County did not strike down Section 5’s preclearance regime altogether, it did invalidate the formula the Voting Rights Act used to determine which states are subject to preclearance.
HR 4 is the House Democratic proposal to address Shelby County. It lays out a new formula: jurisdictions with “fifteen or more voting rights violations” in the previous 15 years, or states with “ten or more voting rights violations” if at least one was committed by the state itself, will be subject to preclearance under the regime laid out in the bill.
One problem with this regime is that preclearance is only as good as the officials who oversee it. A Justice Department led by Attorney General Bill Barr is likely to rubber stamp voter suppression laws that benefit Republicans, as could Trump-appointed judges.
Yet, as Franita Tolson, a law professor and vice dean at the University of Southern California, told me, “there have always been bad actors.” And yet, she argues, ”preclearance was still effective in the Reagan years” and “it was still effective in the Bush years.”
Tolson says the fact that states have to submit new voting laws for approval has a “substantial deterrent effect,” because they are less likely to even attempt to obtain preclearance for the most egregious acts of racial voter suppression. And even if states do obtain preclearance for a bad law, the preclearance process is burdensome in and of itself.
Which raises another important aspect of HR 4 — in addition to laying out a formula governing jurisdictions that are automatically subject to preclearance, the bill also makes it easier for federal judges to require states to preclear new laws if states or localities are caught violating voting rights.
Currently, judges may only do so if a jurisdiction violates the 14th or 15th Amendment rights of voters — violations that typically can only be established if the state intentionally engaged in racial voter discrimination. HR 4 allows judges to impose preclearance on states and localities that commit “violations of the 14th or 15th Amendment, violations of this Act, or violations of any Federal law that prohibits discrimination in voting on the basis of race, color, or membership in a language minority group.”
In practice, that means that a jurisdiction could be subject to preclearance if it enacts a law that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color,” even if the plaintiffs challenging this law cannot prove intentional discrimination.
Just as significantly, the possibility that a jurisdiction might be subjected to a burdensome preclearance regime if it engages in racial voter suppression may deter it from attempting to do so.
At least 21 states plus the District of Columbia permit voters to register to vote on the same day that they cast their ballot — thus effectively eliminating the need to register in advance as an obstacle to the franchise. Nor is same-day registration a particularly new reform. Maine, Minnesota, and Wisconsin adopted it in the 1970s. Three more states — Idaho, New Hampshire, and Wyoming — adopted same-day registration in the mid-’90s.
One benefit of eliminating registration as an obstacle to voting is that it prevents voter purges that can change the outcome of an election. In the lead-up to the 2000 election, for example, Florida hired a private contractor to identify ineligible voters on the state’s rolls. The contractor eventually came up with about 100,000 names that it claimed were names of dead voters or voters who were ineligible because of a felony conviction.
But the list was deeply flawed and misidentified many eligible voters. One local election supervisor realized just how flawed the list was when he recognized the name of three voters who were wrongly flagged as ineligible: one of his co-workers, the husband of a different co-worker, and his own father. African Americans, a group that preferred Democrat Al Gore over Republican George W. Bush by more than 9 to 1, were particularly likely to appear on the flawed purge list.
Bush would go on to win Florida — and with it, the presidency — by just 537 votes, according to official tallies.
The HR 1 legislation contains several provisions that would help prevent a repeat of this incident, and that would otherwise prevent registration from being an obstacle to the franchise. Among other things, it requires states to offer same-day registration in federal elections. It automatically registers voters who provide relevant information to their local Department of Motor Vehicles or other agencies listed in the bill. And it forbids certain types of voter purges.
Thirty-nine states plus the District of Columbia allow early voting — meaning that voters can vote in-person prior to Election Day. All but nine states either automatically mail ballots to all registered voters, or allow any voter who wishes to vote absentee to request a ballot.
In ordinary times, these reforms help ensure that voters are not disenfranchised because they cannot take time off work on Election Day, or because they will be away from home on that day. And in the midst of a pandemic, they help ensure that polling places do not become vectors for the spread of Covid-19. They limit the number of voters who vote in person, and spread out those voters who do cast an in-person ballot over several days.
HR 1 would require all states to offer early voting for at least 10 hours a day, and for at least 15 days prior to Election Day. Notably, this includes weekends — some states have attempted to cut Sunday voting, a day that is particularly popular with African American voters, because Black churches frequently organize voting drives immediately after Sunday services.
The legislation also requires states to allow all voters to vote absentee.
Additionally, HR 1 says states that require voters to present ID at the polls generally must also accept “a sworn written statement, signed by the individual under penalty of perjury, attesting to the individual’s identity and attesting that the individual is eligible to vote in the election.”
Voter ID laws are a common obstacle to the franchise, but they serve no legitimate purpose. Although proponents of such laws often argue they are necessary to prevent voter fraud, voter impersonation at the polls is so rare that it is virtually nonexistent.
Many state election officials face a “dramatic funding gap” thanks to the pandemic, Weiser, the lawyer with the Brennan Center, told me. Numerous states expect a crush of absentee ballot requests from voters who wish to avoid physically going to polling places where they could contract Covid-19. And the workers who staff polling places tend to be older retired voters, who are especially likely to stay at home out of fear of becoming sick.
Solving these problems requires money — money to hire staff to process absentee ballot requests, money to hire people to sort and count those ballots once they are cast, and money to pay poll workers enough that people actually want to take the job. And right now, that money isn’t there.
Even after the pandemic is over, however, Weiser warns that the United States has ”always run on a shoestring.” Especially now that we are facing “more and more hostile foreign government affiliated actors,” states need adequate funding to secure our elections.
In Australia, over 90 percent of eligible voters typically cast a ballot in federal elections. The nation achieves this feat by turning Election Day into a celebration, where voters gather at community barbecues to eat what are often referred to as “democracy sausages.” But Australia also uses a stick to encourage voting — nonvoters can be fined about $80 Australian dollars (about $60 in US currency) if they do not cast a ballot.
If a similar proposal were enacted here, according to a recent report by the Brookings Institution and the Ash Center for Democratic Governance and Innovation at Harvard Kennedy School, it would enhance the voice of Americans who are often underrepresented in US democracy.
“The country’s politics typically places the interests of older Americans over the interests of the younger generations,” for example, because older, more financially stable voters are more likely to cast a ballot. Similarly, a universal duty to vote “would also help ensure increased political participation in communities of color that have long confronted exclusion from our democracy.”
One possible argument against fining nonvoters it that such fines could impose a hardship on the poorest Americans (although, in the long run, federal policy would likely grow much more favorable to low-income Americans if voting were mandatory). Realistically, moreover, the current Supreme Court is unlikely to allow a mandatory voting law in the United States. In NFIB v. Sebelius (2012), the first major Obamacare case to reach the justices, the Court famously invented a distinction between laws that regulate people already engaged in a particular activity, and laws that regulate “inactivity” — that is, laws that compel passive individuals to act in a way they would prefer not to act.
With five Republican justices, the Court could easily import this distinction into the voting rights context.
But NFIB also provides a potential path forward if Congress wants to incentivize voters to show up at the polls without relying on fines. NFIB upheld a provision of Obamacare that required most Americans to either carry health insurance or pay higher taxes as a valid exercise of Congress’s power to tax. And Congress’s power to reward certain behavior with favorable tax treatment is extremely broad. It can use tax credits to encourage people to drive hybrid cars, or even to encourage them to have more children. Barring an extraordinarily partisan decision from the Supreme Court, Congress should also be able to use tax credits to encourage people to vote.
In that vein, instead of fining voters $60 for not voting (or whatever amount Congress deems appropriate), Congress could provide a refundable tax credit of $60 to everyone who casts a vote. As a bonus, Congress could make this a renewable tax credit — meaning it would be available to the poorest Americans who pay little or no income tax.
Beyond protecting our right to vote, policymakers need to think bigger to ensure that every voter has an equal say in shaping our government. There are major structural reasons why America’s political system has ground to a halt and produced outcomes that don’t seem to reflect public will. What follows are ambitious solutions, but we need ambitious thinking to fix a democracy in serious disrepair.
The United States Senate is simultaneously one of our most anti-democratic institutions, and one of the most powerful bastions of systemic racism in our political system.
According to 2019 census population estimates, the state of California has nearly 40 million residents. The state of Wyoming, meanwhile, has fewer than 600,000 residents. Yet each state receives two senators. In practice, that means that each resident of Wyoming has 68 times more representation in the Senate than each Californian.
This malapportionment has profound partisan implications and profound racial implications. In the current Senate, Democrats control a majority of the Senate seats (26-24) in the most populous half of the states. Republicans owe their majority in the Senate as a whole to their crushing 29-21 lead in the least populous half of the states.
Meanwhile, white voters are over-represented in the smaller states that benefit from Senate malapportionment, and non-college educated whites — a demographic that is trending rapidly toward Republicans — are especially over-represented in these states. The Senate, in other words, effectively gives additional representation to white Americans, and dilutes the voting power of people of color.
Democrats have rallied behind a partial solution to this problem — statehood for the District of Columbia. The Democratic House voted to make DC a state in June, and Congress has the power to make DC a state through ordinary legislation. Accordingly, if Democrats control the House, the White House, and a (filibuster-free) Senate, DC statehood is likely to happen fairly quickly.
Yet, while admitting a heavily Democratic, majority-minority city like DC into the union would help mitigate many of the problems with the Senate, it would hardly overcome them. Among other things, while admitting DC would reduce Black under-representation in the Senate, it would also increase the power of white college grads.
More radical solutions are possible, for example, breaking up larger states such as California into smaller states. Absent such solutions, the Senate will continue to over-represent white conservatives and potentially even become a permanent bastion of Republican Party power.
The popular vote loser has become president in two of the last five presidential elections.
Nor is this problem likely to fix itself. A recent study by three University of Texas researchers found that a Democrat who wins the presidential popular vote by 3 percentage points still has about a one in six chance of losing the Electoral College. There is a small chance that a Republican president will be elected even if the Democratic candidate wins the popular vote by as much as 6 points.
Congress cannot abolish the Electoral College on its own — the college itself is written into the Constitution — but it can help hasten its irrelevance.
A proposal known as the National Popular Vote Compact would allow the states to effectively neutralize the Electoral College. It works like this: A bloc of states that control a majority of electoral votes all agree to allocate those votes to the winner of the national popular vote. That way, no matter who wins each individual state, a majority of the Electoral College will always vote for the popular vote winner.
Currently, 15 states plus the District of Columbia, which combined control 196 electoral votes, have signed onto the compact. The compact will take effect once a bloc of states that control at least 270 votes sign on.
But there is a catch. The Constitution provides that no state may enter into a compact with another state “without the consent of Congress.” Though there is a plausible argument that the National Popular Vote Compact does not require such consent, it is uncertain how this argument will fare in court.
Congress could avoid this problem altogether, however, by preemptively giving consent to any compact that seeks to neutralize the Electoral College’s ability to place popular vote losers in the White House.
States must redraw their legislative districts at least once every decade, to ensure that each district has roughly the same number of people. That means the party that dominates the election prior to a redistricting cycle can often entrench its own power by drawing maps that neutralize many of the other party’s voters.
That’s more or less what happened in many states after Republicans had an unusually strong performance in the 2010 elections. In Pennsylvania, for example, President Obama won the state by more than 5 percentage points in 2012 — the first election held under the new Republican gerrymanders — but Republicans still won 13 of the state’s 18 US House seats. In Michigan, Obama won by nearly 10 points, but Republicans won nine of 14 House seats.
Unlike the problems of Senate malapportionment and the Electoral College, however, congressional Democrats have rallied behind a potent solution to gerrymandering, at least in federal elections.
The HR 1 legislation would require nearly every state to use a 15-member redistricting commission to draw US House districts. This commission must include equal numbers of Democrats, Republicans, and independents, and at least one member of each party and one independent must approve final maps. If the commission cannot draw maps or if a state refuses to appoint such a commission, then congressional maps will be drawn by a panel of three federal judges.
It’s not a perfect solution. It’s possible that, despite considerable safeguards written into the legislation, commissioners sympathetic to one party or the other may gain control of the commission. It’s also possible that a state may decide to forgo the commission and take its chances with the courts — especially if the majority party in that state believes that the local federal judges are loyal partisans.
But it’s a much better solution than leaving redistricting to state legislatures, bodies that, by their very nature, will very often be captured by a single political party.
Supreme Court decisions like Citizens United v. FEC (2010) have largely gutted our ability to keep wealthy donors from having a disproportionate impact on elections. The most commonly cited concern about money in politics is corruption, because the need to raise money forces politicians to ingratiate themselves to big donors if they wish to remain in office. But money in politics also has an equally pernicious effect on how lawmakers spend their time.
As former Rep. Steve Israel (D-NY) wrote shortly before he retired from Congress in 2016, “I’ve spent roughly 4,200 hours in call time, attended more than 1,600 fund-raisers just for my own campaign and raised nearly $20 million in increments of $1,000, $2,500 and $5,000 per election cycle. And things have only become worse in the five years since the Supreme Court’s Citizens United decision.” Members of Congress spend a simply astonishing amount of time raising money, and that’s time they can’t spend doing their actual job of informing themselves about the bills they will vote into law.
One way to mitigate this problem is public financing, which provides additional funds to candidates who agree to certain restrictions on their ability to raise money from large donors. HR 1 would create such a regime for House candidates.
Under the legislation, qualified candidates receive six dollars for every one that they raise from most donors who give $200 or less. Thus, the bill makes it easier for candidates to get elected to Congress without relying on the wealthiest individuals to fund their campaigns. It also potentially allows them to spend less time on fundraising, freeing them to actually do their job.
Any voting rights law is likely to receive a tough hearing from a Supreme Court that has only gotten more conservative since Shelby County. And any law enacted by a Democratic Congress could be struck down by overly partisan federal judges. Republicans have proven quite adept in shopping for federal trial judges who will strike down progressive laws on the thinnest legal arguments. And Trump has filled the federal bench with hardline conservatives, many of whom would be happy to strike down a law that makes it easier for voters of color — and for Democratic-leaning voters in general — to cast a ballot.
But Congress is hardly powerless against such judges.
While the Constitution created the Supreme Court, it only provides for “such inferior courts as the Congress may from time to time ordain and establish.” Thus, because lower federal courts are entirely creations of Congress, Congress may determine the scope of any lower court’s jurisdiction.
It could, for example, strip courts that are known to be stacked with Republican partisans of jurisdiction to hear any lawsuit challenging new voting rights legislation. It could also require all such suits to be brought in the federal district court in DC — thus ensuring that any decision blocking such legislation would appeal to the United States Court of Appeals for the DC Circuit, where reactionary judges likely to toss out voting rights laws for partisan reasons can be outvoted by their more numerous colleagues.
Alternatively, Congress could create a new court — call it the “United States Court for Voting Rights Appeals” — and route any lower court decision challenging a voting rights law to that Court, which would be filled with new judges appointed by the sitting president.
Congress’s ability to shape the Supreme Court’s jurisdiction is far more uncertain, and the Court’s own decisions on this point are not a model of clarity. It is unlikely that a Republican Supreme Court would allow a Democratic Congress to strip its authority to hear certain lawsuits altogether. But Congress might be able to impose limited restrictions on the Supreme Court’s jurisdiction.
It might, for example, strip the Supreme Court of its power to stay a lower court decision enforcing a voting rights law while that case is still being litigated in lower courts. This act of Congress wouldn’t prevent the Supreme Court from striking the voting rights law down after the case is fully litigated in trial court and by an intermediate appeals court. But it could prevent the Supreme Court from immediately stepping in to block new voting rights legislation from ever taking effect.
In any event, a Democratic Congress will need to think hard about how to deal with partisan judges if it doesn’t want its laws to be quickly sabotaged by those judges. And that means thinking creatively about how to prevent judicial partisans from reviewing those laws.
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