The Washington PostDemocracy Dies in Darkness

Democratic push on voting rights becomes more urgent as midterms approach

But passing a measure to outlaw partisan gerrymandering could cause a new kind of chaos

“The [legislation] says that courts cannot allow a method that’s found to be illegal to be used simply because an election is imminent,” says former attorney general Eric Holder, an advocate for new voting rights measures that bar partisan gerrymandering. (J. Scott Applewhite/AP)

Senate Democrats not only failed to push their social spending bill over the finish line before the Christmas holidays. They also fell short on another of the party’s top priorities this year: approving a landmark package of voting rights measures.

And while Democrats argue the changes are critical to safeguarding democracy, strategists in both parties say the package could also reshape the battle for control of the House next year, potentially bolstering Democrats’ chances of hanging onto their House majority in a year when Republicans have the edge.

[Manchin’s private offer to Biden: pre-K, climate language, health care. But no child tax credit]

One of the two bills that Democrats are considering, the Freedom to Vote Act, would bar partisan gerrymandering. If passed, the bill could trigger a cavalcade of lawsuits to force states to redraw new congressional maps that favor one party or the other, all before November 2022.

“The [legislation] says that courts cannot allow a method that’s found to be illegal to be used simply because an election is imminent,” Eric Holder, the former attorney general and current chairman of the National Democratic Redistricting Committee (NDRC), said in an interview last week. “And so you would have the capacity once the bill is passed to challenge what Texas has done, what Georgia has done, North Carolina, Ohio — what they’ve either done or indicated they’re going to do.”

All four of those states have adopted maps in recent months that favor Republicans and, in the cases of North Carolina, Georgia and Ohio, are likely to cost Democrats seats, making their efforts to retain control of the House that much harder.

Democrats have said they’re hustling to pass voting rights legislation to block threats to voting rights, not to gain partisan advantage. In the 20th century, “we saw the rise of authoritarian regimes not because they were strong but because the defense of democracy was weak,” Holder said. “And we can’t allow that to happen again.”

Holder, Senate Majority Leader Charles E. Schumer (D-N.Y.) and Democratic election lawyer Marc Elias have mounted a campaign over the past few months to convince Democratic senators that passing the voting rights bills ahead of the midterms is imperative to preserving democracy.

Schumer has said it’s a priority to move on voting rights in time to take effect ahead of the midterms. He pledged in a letter to Senate Democrats on Monday to take up the legislation as soon as the first week of January — even if it requires changing the chamber’s filibuster rules.

But the odds of passing such a package seem bleak, especially after Sen. Joe Manchin III (D-W.Va.) announced on Sunday that he couldn’t vote for his party’s other top priority, Democrats’ big health-care, child-care and climate bill.

Manchin supports the Freedom to Vote Act, which he helped to negotiate after coming out against a broader voting rights bill earlier this year. But he has said repeatedly that he opposes changing Senate rules to pare back or weaken the filibuster without Republican support, even in the case of voting rights.

[Opinion: I will not vote to weaken or restrict the filibuster, writes Joe Manchin]

Sen. Kyrsten Sinema (D-Ariz.) feels the same way. Democrats would need both their votes to change the Senate’s filibuster rules absent Republican support.

And Republicans see no reason to help Democrats pass a bill that could shore up their rivals’ odds of holding on to the House majority. They’ve warned that forcing states to redraw their maps threatens to turn the midterms “into a gigantic mess,” as Karl Rove, a senior adviser to the National Republican Redistricting Trust, put it.

“It’s clear this is a political power grab,” Rove said in an interview. The Freedom to Vote Act “would upend the 2022 elections, further undermining people’s confidence in our electoral system.”

Republican-controlled state legislatures probably would sue to block the redistricting provisions from taking effect this cycle, said Jason Torchinsky, a longtime Republican campaign finance lawyer who predicted “complete chaos” if the Freedom to Vote Act passed.

“We would probably be looking at primary elections delayed until August or September,” he said. “We would be looking at overworked and overburdened election officials just trying to get done and implement whatever changes were ordered at the last minute.”

Redistricting changes are only one part of the sweeping voting rights legislation that Democrats have been laboring to pass all year.

The Freedom to Vote Act would also mandate early and mail voting, make Election Day a holiday, rewrite campaign finance rules and outlaw new restrictions on voting passed by some Republican-controlled state legislatures this year, among other measures. A second bill, the John Lewis Voting Rights Advancement Act, would force states with a history of voting rights violations to seek “preclearance” from the Justice Department before changing their voting rules.

It’s not clear exactly how much barring partisan gerrymandering might aid Democrats’ efforts to maintain control of the House. The NDRC estimates that the Freedom to Vote Act would increase the number of competitive House districts by 40 percent, but it declined to comment on how many of newly competitive districts might come at the expense of safe Republicans seats and how many at the expense of solidly Democratic ones.

The NDRC and another outside group, End Citizens United, have spent heavily to push passage of the legislation, shelling out about $37 million this year, according to the groups.

Democrats say holding the House isn’t what’s motivating them.

“We must end partisan gerrymandering to ensure voters are choosing their elected officials — not the other way around,” Sen. Amy Klobuchar (D-Minn.), who introduced the Freedom to Vote Act, said in a statement to The Washington Post. “This isn’t about politics — it’s about protecting the right of Americans from all parties to make their voices heard at the ballot box.”

The bill is likely to hurt House Republicans more than House Democrats, though, because Republicans control redistricting in states with a total of 187 House seats, said Michael Li, a senior counsel at the Brennan Center for Justice, which has advocated for the legislation. Democrats control redistricting in states with only 75 seats.

Still, the Freedom to Vote Act could hurt Democrats in states in which they’ve passed gerrymandered maps of their own, such as Oregon, Illinois and Maryland.

Holder and other advocates of the bill said its impact on redistricting ahead of the midterms probably will be moot if Democrats don’t find a way to pass it in the coming weeks.

While the bill includes provisions designed to speed up the process of challenging maps in court, redrawing them “will take several weeks to several months at the very fastest,” Li said. “And so if you don’t pass something by, say, the middle or end of January, it will be really, really hard.”

Sinema warned last week that if Democrats change the rules to pass voting rights with only 51 votes, Republicans could just as easily repeal the legislation if they retake the Senate and replace it with “a nationwide voter-ID law, nationwide restrictions on vote-by-mail or other voting restrictions currently passing in some states extended nationwide.”

But Holder said Democrats should be willing to take the risk. Republicans, he argued, couldn’t supply 51 votes to repeal Obamacare in 2017 despite campaigning on repeal for years.

“It’s hard to look into the future and predict what Republicans might do,” he said.