Voting Rights and Partisan Power Grabs

by Neil H. Buchanan 
Suppressing votes has become the Republican Party's signature obsession, continuing a decades-long pattern of denying the franchise to people of color and others who might dare to try to elect Democrats.  Although voter suppression is in no way new for Republicans, the Trumpified version of that party has now also decided that they will empower their own partisans simply to set aside disappointing election results, passing laws that remove neutral arbiters from the positions that determine who received more votes (out of those that Republicans will allow to be cast in the first place).

This is a catastrophe of the highest order, and there are no dissenters in the national Republican Party.  Senator Susan Collins, who shocked everyone by retaining her seat in the 2020 election, is supposed to be the least extreme Republican in Congress.  That might well be true, but she is delivering talking points that would make Strom Thurmond beam with pride, arguing that Democrats are wrong to try to protect the right to vote through federal legislation.  States' rights!
What could go wrong when state governments, especially in the South, start disenfranchising their citizens?  This is an existential threat to constitutional democracy, yet the most "reasonable" Republican takes a very public role in justifying the rigging of future elections.
And as Professor Dorf pointed out yesterday at the end of his discussion of Brnovich v. DNC, the six-justice conservative majority of the Supreme Court is showing that it will fully back the people who placed them on the Court:
[A]t a time when we will likely need the federal courts to stand up to the Republican Party's nationwide effort to undercut democracy, Brnovich shows that the Republican-packed Supreme Court is more likely to abet that effort.
I have nothing to add about Brnovich, at least not today.  Instead, I want to discuss here what it means to be nonpartisan in setting up voting systems.  Every change to voting systems is not equal, and proposed changes must not be derided or dismissed simply because they might help one party or the other.

When all fifty Senate Republicans voted as a bloc last week to prevent the For the People Act from coming to a vote (or even being debated), I wrote a column here on Dorf on Law discussing the objections to that Act from Democratic Senator Joe Manchin and from a legal academic, the latter of whom claimed that the proposed law is "the Democratic Party’s dream elections bill" that is nothing but "a wish list of measures that facilitate their own turnout efforts."
My overarching argument in that column is that Republicans and the people who (inadvertently or not) support their efforts to rig elections have rejected the very idea that there can be a neutral set of election procedures.  They treat the status quo -- fully corrupted as it already is -- as the natural baseline against which all changes must be measured.  That framing necessarily implies that Democrats' proposals to allow more people to vote is per se "partisan," because current nonvoters are (by Republicans' design) mostly Democratic-leaning citizens.  Allowing them to vote would be obviously bad for Republicans and good for Democrats, but the partisan impact does not make the proposals themselves illegitimate.

We cannot, then, merely throw up our hands and allow Republicans to say, as they have repeatedly, that the Democrats' proposals are "a partisan power grab."  Democrats certainly are aware that the laws that they are proposing would be better for their own electoral fortunes than current laws are, but even if that were Democrats' only motive (which I doubt), that does not mean that their proposals cannot be assessed using a nonpartisan lens.

In response to my column last Thursday, I received a very interesting email from a reader, who gently called out my word choice when I wrote this: "Democrats are willing to stop gerrymandering."  My correspondent argued that this was "a rather broad statement, the truth of which depends on a number of factors."  He then pointed to examples of Democrats not following through on their own promises to stop gerrymandering in Virginia, as well as Democrats in Oregon being clever about how they deal with redistricting.

Those are interesting examples, and they provide an opportunity for me to clarify my statement as follows: "Democrats are willing to stop gerrymandering, although they of course have good reason not to do so unilaterally."  That does not make them equally partisan or power grabby.  It makes them realists.  It also in no way means that they want gerrymandering to continue.
In the Supreme Court's most recent (and likely final) slap-down of a challenge to gerrymandering in a pair of cases in 2018, one of the cases was a Republican challenge to Maryland's congressional districts.  Similarly, my Verdict colleague and Illinois Law dean Vik Amar co-authored a piece this week about Illinois Republicans' challenge to that state's Democratic Party's gerrymandered handiwork.  In Maryland's case, my recollection is that the state's dominant party took a congressional map that had produced 6 Democrats and 2 Republicans and twisted it until it produced 7 Democrats and 1 Republican.  And the governor who signed it was completely forthright that they had done so very much on purpose.

So Democrats are just as bad as Republicans, right?  No.  One need not even decide the question of who started all of this to understand what is going on.  No matter when it started or why, Democrats know that Republicans are gerrymandering everything they can get their hands on, so it would be crazy for Democrats to unilaterally disarm.
As an analogy, 15 states and D.C. have conditionally agreed to be part of the National Popular Vote Interstate Compact, which would have those states award all of their electoral votes to the winner of the national popular vote.  The condition is that there must be enough states in the compact to guarantee the outcome in the Electoral College.  All sixteen of those jurisdictions are currently "blue," but if enough red states were willing to join, the notion of "swing states" would become moot.  But again, Democrats in each state are not going to do this alone.
Interestingly, California adopted independent redistricting because of a ballot initiative, but Democrats are certainly not having trouble dominating that state's elections.  It is possible under some circumstances, then, for Democrats to win even without resorting to Republicans' tactics.  Even so, with Texas and Florida Republicans (among others) now eagerly redrawing their congressional districts in ways that will most likely erase Democrats' current slim House majority (even if Democrats otherwise do as well in 2022 as they did in 2020), why would Democrats not fight fire with fire?  Why would Maryland's Democrats give back a seat?
In any event, it does not matter to my argument whether Democrats are pure of heart.  When it comes to gerrymandering and the rest of the Democrats' supposed "wish list," they will continue to play the dirty game under the current dirty rules but try to change those rules.  It is no surprise that they want to expand the voting pool, but again, that does not make expanded voting illegitimate.

One way to think about this is to ask what one would say about the various proposals if they were being proposed in another country.  In my column last week, for example, I quoted a law professor's assertion that "democracy can survive without on-demand, vote-by-mail for everyone."  Yes, democracy can survive in some form, but unless there is a proposal to expand voting via some other means (increasing the number of voting precincts, machines, and so on), universal vote-by-mail is important for democracy, not just for Democrats.

The states that have been using automatic mail-in ballot systems include blue states, swing states, and also very red Utah.  Did Utah adopt that system because it favors Democrats?  Of course not.  If I were looking at a country that was considering adopting automatic mail-in balloting, I would not say, "Which party is it good for?"  Instead, I would describe it as a nonpartisan proposal to increase voting.  It would be important, of course, to know whether such voting can be corrupted, but experience in those states shows that fraud is just as vanishingly rare there as voter fraud is in the rest of this country.

By contrast, when Georgia's Republicans passed a law that targeted so-called Souls to the Polls get-out-the-vote efforts by Black churches, that was an attempt not only to reduce voting but specifically and obviously to reduce Democratic votes.  When Britain's Boris Johnson tries to make it harder for younger people to vote, he is aiming to be both anti-democratic and anti-Labour.  There is nothing in the For the People Act or the John Lewis Voting Rights Act that one could not defend on the merits, no matter the likely impact on election results.
As Adam Serwer (the author of the fantastic article "The Cruelty Is the Point," which he has now expanded into a book) pointed out in an op-ed last week:
[T]here are no Democratic proposals to disenfranchise Republicans. There are no plans to deny gun owners the ballot, to disenfranchise white men without a college education, to consolidate rural precincts to make them unreachable. This is not because Democrats or liberals are inherently less cruel. It is because parties reliant on diverse coalitions to wield power will seek to win votes rather than suppress them.  
In other words, if Democrats are to be faulted for trying to win elections by expanding the franchise, they have to be faulted for thinking that they can actually appeal to people and win their votes.  And in any event, as Serwer makes clear, there are ways that Democrats could try to deny the vote to some disfavored people, but they are not doing so.  Unlike gerrymandering, where Democrats are engaging in tit-for-tat, they are not targeting and trying to reduce pro-Republican voter turnout -- unless one thinks that trying to convince would-be Republican voters to change their minds is unfair targeting!

Do I think that there are circumstances under which, say, Chuck Schumer, would play the kind of bare-knuckle politics that Mitch McConnell plays?  Yeah, probably, maybe.  The question, however, is not whether both parties might be equally sleazy under the right circumstances.  It is whether one party is being sleazy under current circumstances, and that is not at all a close call right now.

Most importantly, adopting Democrats' voting proposals does not lock in results for all time.  Republicans would have to figure out how to win under free and fair elections with very high turnout, and one suspects that they could eventually do so.  What Republicans are doing now, however, locks out non-Republicans from power systematically and essentially permanently.

To reverse a partisan power grab is not a partisan power grab, even if the Democrats stand to benefit from doing so.  Elections are zero-sum games, but democracy is not.