The country’s electoral and voting system is in dire need of fundamental change — most urgently, to deal with the pernicious practice of partisan gerrymandering. The filibuster might stand in the way of making this critical fix, but it doesn’t need to be an insurmountable roadblock.
First, an explanation of why it is so important for Congress to tackle partisan gerrymandering.
The Supreme Court has made clear that it won’t get involved. Even worse, the court has hinted that, given the Constitution, neither state-based ballot measures nor state-court enforcement of state constitutional clauses can take away the power to gerrymander congressional districts from state legislatures.
Only Congress clearly can, because the Constitution’s first article explicitly authorizes Congress to displace state “regulations” on the “manner of holding elections for … Representatives.”
And congressional action is imperative because it undermines democracy to draw district lines that produce more partisan victories than what the voters would choose to give the party if the map weren’t so distorted. As significant, this practice magnifies the preexisting problem of political polarization, making primary contests all-important and pushing candidates of both parties to extremes.
A Democratic reform wish list, packaged as H.R. 1/S. 1, would tackle the gerrymandering problem by requiring states to use independent citizen commissions to draw congressional districts. Drawing upon lessons learned from similar commissions already established in several states, and permitting those to continue as long as they maintain consistency with new federal standards, the bill would mandate that other states create new commissions equally divided among Democrats, Republicans and independents or members of smaller parties. The bill would also establish a uniform set of rules for drawing district lines and explicitly ban using partisan considerations when doing so.
For reasons of self-interest alone, Democrats should see ending gerrymanders as Job One: Looking solely at Georgia and Texas, the GOP easily could gerrymander its way to a House majority in 2022, as new lines are drawn in the aftermath of the 2020 Census. But this tactic can work in both directions. Democrats could counterpunch, potentially to a draw, with their own gerrymanders in Illinois and New York.
What might induce Republicans to agree to changes — in particular, to changes that Democrats could swallow?
The lesson of the Georgia Senate runoffs is that Democrats don’t need their preferred set of voting rules in order to win. No voting rights advocate thinks Georgia’s electoral system, run by Republican Secretary of State Brad Raffensperger, is ideal. But it was good enough. It didn’t cause disenfranchisement that prevented voters from getting what they wanted.
Accordingly, Senate Democrats should approach electoral reform this way: What changes are necessary to achieve a system that is not perfect but adequate; enables their party’s candidates to win fair competitive elections; and can win the support of 10 GOP senators?
I’d start by doing something that Democrats might instinctively recoil at: putting voter ID on the table. Georgia has a strict voter ID law, and still President Biden, Jon Ossoff and Raphael Warnock won. Using Kentucky’s new voter ID law as a model, I’d let Republicans craft reasonable nationwide voter ID rules.
My preference would be a requirement that voters provide a digital photo at the time of registration, which they could do by submitting a cellphone photo online; poll workers would have access to the photo in an electronic poll book, and voters would verify their identity simply by showing themselves at the polls. But any photo ID that didn’t cost voters money and would be easy to obtain would not be an undue burden on the right to vote.
If that weren’t enough, I’d add vote-by-mail to the mix. Republicans, prodded by President Donald Trump, spent much of the 2020 campaign bemoaning the supposed frailties of voting by mail. Their argument was overblown, but absentee voting does pose extra risks compared with in-person voting, including ballots lost or delayed in the mail.
As with voter ID in Georgia, the lesson of 2020 is that some limitations on voting by mail are tolerable. Texas had one of the most stringent absentee voting regimes in 2020, and turnout still was through the roof. Easy vote-by-mail isn’t a must for Democrats; they just need sufficient opportunities to cast a ballot — and reasonably drawn districts — for good candidates to have a chance. For example, two weeks of early in-person voting, including nights and weekends available at convenient locations, should be an acceptable substitute for no-excuse absentee voting.
Democrats should stay focused on what’s most important in electoral reform. Right now, that’s restoring sanity to redistricting.