Looking back at 2021-2022 – Election Law Blog

In light of Rick P’s post about David Shor’s current lament about the failure of Congress to redress gerrymandering back when Democrats were consumed by their efforts to enact the massive S1/HR1 reforms, I recall this column I wrote for The Washington Post on February 4, 2021, less than one month after the insurrection on January 6: Congress should make a deal to end partisan gerrymandering.

The main point of the column was that Democrats in Congress should trade away issues like voter ID, vote-by-mail, and other wish-list reforms relating to election administration in order to secure the much more important structural change of eliminating partisan gerrymandering.

The column noted, as Shor did the following year, that altering election administration rules wouldn’t make a significant difference in the capacity of the electoral system to translate voter preferences accurately into electoral results, whereas ending partisan gerrymandering would. (“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.,” the column said.) To make this point, the column cited the then-recent Georgia Senate runoffs: “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.”

On the other hand, looking specifically at Texas, the column observed: “For reasons of self-interest alone, Democrats should see ending gerrymanders as Job One.”

At the time, I thought Democrats should strive to find 10 Republican Senators–just 3 more than voted to convict Trump in his January 6 impeachment trial–to agree on the necessity to end partisan gerrymandering, and since Senators don’t benefit from gerrymandering themselves, I thought the strategy should be to negotiate with them solely to achieve gerrymandering reform, without weighing it down with all the other provisions in S1/HR1 that were inevitably objectionable to all Republicans, including those willing to risk their political careers to cross Trump. The column ended this way: “Democrats should stay focused on what’s most important in electoral reform. Right now, that’s restoring sanity to redistricting.”

This was a theme I continued to stress in additional Washington Post columns in 2021. For example, on March 29, 2021, I repeated that Democrats should focus on the “anti-gerrymandering” provisions in S1/HR1 and jettison all provisions that were dealbreakers from a GOP perspective. The last sentence of that column: “Democrats are in danger of missing the moment, by going too big and too far.”

On May 27, 2021, I again stressed the need to focus on gerrymandering and wrote: “Senate Democrats are at risk of blowing their chance at meaningful electoral reform. Rather than ending up with nothing, because they spent too long trying to shoot the moon with S. 1, they should compromise with 10 reasonable Republicans on a set of simple measures to ensure that congressional elections genuinely implement voter preferences.”

I won’t belabor the point by quoting the additional columns along the same lines as the Democrats continued their efforts to enact their omnibus bill over unified Republican opposition.

As the effort to protect American democracy from the forces of authoritarianism continues, and indeed grows more urgent, I continue to believe that the potential window of opportunity of 2021-2022 was wasted by a misguided approach on the part of congressional Democrats.