As democracy reform falters in Congress, voters across the country are being left defenseless against an onslaught of restrictive voting laws enacted by Republican legislatures. And while voters swept Democrats into power on the promise that electoral reform was their top priority (the bills are H.R. 1 and S. 1 for a reason), those efforts have run up against the filibuster and the near-uniform opposition of Republicans on every major bipartisan compromise offered to date.
Rather than playing hardball in response, Democrats are acting like a party out of power — throwing away the rare opportunity voters gave them in the hope that they can do something later. Congressional Democrats have committed only to completing infrastructure votes before heading home for all of August, and the White House is already talking about trying to “out-organize voter suppression” in 2022.
Democrats need a reality check. You can’t out-organize partisan gerrymandering. You can’t inspire voters to turnout in 2022 with promises you made in 2020. And you can’t expect organizers to put everything on the line when you won’t do the same.
House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Chuck Schumer (D-N.Y.) still have one untapped source of leverage, and now is the time to use it: Publicly commit to put off recess until democracy reform is done. This is not unprecedented or unwarranted. Schumer has signaled that the August recess may be delayed until an infrastructure bill is done. And, in 2017, then-Majority Leader Mitch McConnell (R-Ky.) delayed the August recess in an effort to cut back the Affordable Care Act (ACA).
By committing to push off recess until a voting-rights deal is done, Democrats would create a strong incentive for Republicans — and Sens. Joe Manchin (D-W.Va.) and Krysten Sinema (D-Ariz.) — to come to the table, if only to get back home.
The only question, then, is whether Democrats are as committed to defending democracy in 2021 as Republicans were to rolling back the ACA in 2017.
To be sure, Democrats might not get everything they want — and some reforms could be put off until after the recess. But certain key proposals, such as prohibiting partisan gerrymandering, must be enacted now to make a difference in the 2022 elections. The Census Bureau will release data in a matter of weeks — on Aug. 16 — and states immediately will begin redistricting. Without congressional action in the next few weeks, Republicans could lock Democrats out of power for the next decade, even if voters mobilize and turn out heavily in Democrats’ favor. So, the window to prevent partisan gerrymandering is closing quickly.
Whatever else Democrats decide to do with election reform before the recess, they should put partisan gerrymandering to a vote ASAP. Manchin consistently has said, “If I can’t go home and explain it, I can’t vote for it.” Banning partisan gerrymandering is as simple as it gets. Nobody likes gerrymandering, including some Republicans from John McCain to Ronald Reagan. Polls routinely show that more than 70 percent of voters disapprove of gerrymandering. And conditioning the recess on redistricting reform would put Republicans on the record.
The For the People Act would mandate the use of independent commissions to draw congressional maps. We’re now too late in the calendar for commissions to form before 2022. But Congress could still ban gerrymandering outright now and leave commissions as an option for future years. The straight ban could (and should) also be extended to include state legislative districts. Putting an end to gerrymandering in state legislatures would strike at the source of restrictive voting laws and could help ease the threat of election subversion in future elections.
Congress not only has the constitutional authority to do this, but received a specific invitation to do so from Chief Justice John Roberts. When the U.S. Supreme Court declared partisan gerrymandering a nonjusticiable political issue, pulling the federal courts out of any role of regulating overly partisan maps, it reiterated that Congress had the ability to put an end to this practice if it desired.
Prohibiting partisan gerrymandering of congressional districts is indisputably constitutional under Article I, § 4 of the Constitution. This provision allows state legislatures to prescribe the “manner of holding elections for Senators and Representatives,” but gives Congress the power to “at any time by law make or alter such regulations.” Would banning gerrymandering in the states also be constitutional? Yes. In Gill v. Whitford, the Supreme Court unanimously held that partisan gerrymandering can cause a constitutional harm sufficient to give voters standing in federal court. And, in Rucho v. Common Cause, the court held it was up to Congress to decide on the appropriate standards to “guarantee to every State in [the] Union a Republican Form of Government” under Article IV, § 4 of the Constitution.
A bill that explicitly defines and prohibits partisan gerrymandering and gives voters a cause of action to enforce that law in court would do just that.
Such a bill doesn’t need to be complicated. Congress can simply set out the following standard: “Any congressional redistricting plan or redistricting plan enacted for a statewide legislative body shall be unlawful if it was drawn with the intent to entrench a party in power by diluting the votes of persons favoring its rival and if the plan has the effect of meaningfully diluting such votes.”
To be sure, there is much more Congress should include in any redistricting bill to help it operate smoothly: presumptions about what plaintiffs must show to prove intent or effect, preferred types of evidence, explicit enforcement instructions, and the kind of redistricting-litigation reforms that the House added to H.R. 1. The For the People Act offers plenty to borrow from on this score.
But the key step is banning partisan gerrymandering before state legislatures across the country start drawing maps. And to do that, Congress must delay the August recess and act immediately. For redistricting reform, it’s now or never.
David Daley is a senior fellow at FairVote and the author of “Ratf**ked: Why Your Vote Doesn’t Count” and “Unrigged: How Americans Are Battling Back to Save Democracy.” Follow him on Twitter @davedaley3.
G. Michael Parsons is a program affiliate scholar at New York University School of Law and an expert on constitutional law and the law of democracy. Follow him on Twitter @GMikeParsons.