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With the For the People Act going nowhere in the Senate, Majority Leader Chuck Schumer should work on passing one of its most important components, writes Johnson.
With election reform stalled, Senate should prioritize anti-gerrymandering
Johnson is executive director of Election Reformers Network, a nonprofit founded by international election specialists to promote electoral improvements in the United States.
Absent a remarkable change of heart from Democratic Sen. Joe Manchin, the For the People Act seems headed for defeat. Democratic congressional leaders insist on binding the bill's many elements as one package, but they should now shift focus to the individual components with at least some chance of becoming law.
Doing so will require Democrats to back away from battling the much-discussed restrictive election legislation in Georgia and other states. This will be a hard step to take, but some perspective can help.
In 2018, before some of the voting options opposed by Republicans even existed in some states, more than three-quarters of local election officials told pollsters that voting and registration had gotten easier during their tenures. Last year brought further, significant expansion of voting options. The Republican restrictions on some of these options are blatantly partisan, and a galling reminder of Donald Trump's continued influence. But such restrictions do not entail, as E.J. Dione claimed in a Washington Post op-ed Sunday, that "the voting rights of millions hang by a thread."
Yes, state-level advocates should fight these restrictions in court and keep them in the eyes of voters, who may come to punish Republicans for their anti-minority behavior, as Californians did over anti-immigrant legislation a generation ago. And it may well turn out that the greatest harm of these bills lies not in their voter restriction provisions, but in the dangerous expansion of legislative control over election administration, a problem the For the People Act (also known as HR 1 in the House, and S 1 in the Senate) does not address.
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In the Senate, the focus should shift to pieces of S 1 with more broad-based support and the potential for significant impact on our democracy. Chief among these is the bill's ban on partisan gerrymandering for congressional elections.
Gerrymandering is theft by another name, skewing representation in Congress away from popular preference. A 2017 Brennan Center for Justice report estimated that Republicans won 16 or 17 more seats in the 115th Congresses than they would have if a politically neutral redistricting process had been in place.
Democrats of course also gerrymander, and the party used that tactic to grab seats when it controlled more state legislatures (turning Ronald Reagan into an ardent advocate of reform). Both parties will seek maximum advantage in the maps to be drawn this fall, and biased districting will be much more difficult to counter in federal courts than in prior decades. Even blue states that have implemented nonbinding reforms, like New York, will likely succumb to the political need to maximize political advantage.
But the harm of partisan gerrymandering goes deeper. In safe gerrymandered districts, political competition shifts from the general election to the primaries, with a their much smaller, unrepresentative and more ideological voter base, making the extremes of both parties( and the fear of being "primaried") a dominant concern for members of the House of Representatives.
Revealingly, the 138 Republican House members who voted on Jan. 6 to oppose the Electoral College votes of Arizona and Pennsylvania come from significantly less competitive districts on average than their less rebellious peers (based on data from the Cook Partisan Voter Index). Several "rebel" Republicans had themselves entered Congress via a primary challenge against a Republican incumbent.
In this context, redistricting reform could be presented as Congress' response to the attempted coup of Jan. 6, a framing that could help with the critical issue of Republican support. Seven Republicans followed the Jan. 6 attack by voting to impeach Donald Trump. Rep. Liz Cheney's ouster from the leadership last week may have opened three more to the value of reform to slow the advancing Marjorie Taylor Green wing of their party.
Redistricting reform could gain support among business organizations for the same reason. A state chamber of commerce CEO told me gerrymandering is becoming a priority concern among chambers because "it elects the crazies."
Republican voters understand the core unfairness of insiders drawing their own districts. Recent polling on provisions of the For the People Act showed 59 percent support from Republicans . In 2018, 74 percent of counties Trump won in 2016 by 25 points or more backed anti-gerrymandering ballot initiatives in Michigan, Ohio, Colorado and Missouri.
Other elements of S 1 Senate Democrats could prioritize include campaign finance disclosure (with 80 percent support among Republicans) and a new provision protecting election officials from threats and harassment. These elements could combine with anti-gerrymandering or be presented in separate bills, which could at least force an up-or-down vote on these popular issues.
But anti-gerrymandering should be the lodestar. Relative to other democracies our system allows people with partisan interests extraordinary control over election rulemaking and administration. Party-led state legislatures are micromanaging election rules, and partisan elected election officials have at times posed serious threats to fairness (for example, Florida Secretary of State Katherine Harris in 2000). Congressional action on redistricting reform would be a huge win, perhaps second only to the voting rights act, and a major step toward less partisanship at the core of our electoral ecosystem.
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Gov. Brian Kemp signs legislations creating new voting restrictions in Georgia.
Hyperbole aside, Georgia's new rules go against global principles for election fairness
The heated debate over voting rights in the United States is on full display in multiple venues. Senators clashed last week about the need for the major federal voting protections recently passed by the House. State legislatures across the country, meanwhile, are considering a range of proposals that ignore the positive lessons from the 2020 election.
Georgia, having just emerged from close presidential and Senate elections, is ground zero in the voting rights debate. Last week Gov. Brian Kemp signed an election law overhaul passed by his fellow Republicans in charge of the General Assembly. Proponents see it as essential for ensuring ballot integrity. Voting rights activists see it as harkening to the spirit of the Jim Crow era.
While there has been an element of hyperbole in the vehement reaction of the law's critics, their response is understandable in light of the measure's origins in the highly partisan and baseless allegations of fraud in the November election. Those claims reflect a well-organized disinformation campaign and the conspiratorial delusions of a sore loser, former President Donald Trump, who is now under investigation in Georgia for possibly committing an election-related felony.
Furthermore, the new law falls short of international standards and democratic principles in several important ways.
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First, these principles obligate governments to provide access for all eligible voters and to ensure the integrity of the process — making it simple to cast a ballot while making fraud or other malfeasance difficult and easily detectable.
Actions in recent years by Georgia's legislators and election officials had made improvements in attaining these goals. The state now allows voters to review their ballots on paper before they're cast and conducts the best available form of post-election audit to enhance confidence in the result. And it has increased access to the franchise with automatic voter registration.
Georgia has now undermined this positive record. Several provisions of the new law reduce access to the ballot necessary because our Election Day, unlike in many other countries, is not an official holiday. Early in-person voting and voting by mail effectively obviate the need for citizens to choose between work obligations and civic duty. And both alternatives already had ample security safeguards, including required verification of personal data before issuing an absentee ballot.
The new law requires vote-by-mail applications to include approved identification and sensitive personal information. The request must be submitted at least 11 days before Election Day. And drop boxes for the envelopes will only be allowed inside early voting locations. These changes do little to improve the integrity of the process. But they may well discourage Georgians without an approved ID, along with the elderly and others unable to access the more limited drop boxes.
Advocates for these restrictions repeatedly point to the 2005 report of a commission chaired by former President Jimmy Carter and former Secretary of State James Baker that encouraged further study of vote-by-mail practices. But given technological advances in the past 15 years, and the experiences of states conducting elections almost entirely by mail, Carter now says "voting by mail can be conducted in a manner that ensures election integrity."
A second principle that should guide election laws across the world is that people with a partisan or personal interest in the outcome should not be in position to influence an election.
Georgia's law falls far short here as well. It changes the makeup and authority of the State Election Board in ways that could allow undue influence by the political party in control of the state capital. The elected secretary of state is no longer chair of the board; instead, the official will be appointed by majority votes of the state House and Senate. Although commendable provisions encourage selection of a political independent, the likely outcome is four of the board's five members will be from one party and have no independence from the majority in the legislature.
Compounding this problem is a new provision granting the Election Board authority to temporarily replace election administrators in as many as four counties. Improving performance by subpar local election offices is a worthy goal. But the law is silent on the criteria for replacements, so this power could easily be abused for partisan ends. Taken together these provisions allow the majority in the General Assembly to control both the State Election Board and election administration in pivotal counties.
Rather than place these powers in the hands of partisan legislators, Georgia should establish an independent committee to shortlist candidates for the chair (and maybe all the members) of the Election Board and to find replacements for flawed local administrators. This follows the example of structures reducing partisan self-dealing in other areas of our democracy: the nominating commissions that find potential judges for courts in more than half the states, and the independent commissions that have a role in redrawing legislative and congressional boundaries in about one-fifth of the states.
Ultimately, repairing democracy in the United States requires a recognition that candidates and parties reliant on elections need to step back from how elections are run.
This guiding principle is behind much of the good government package known as the For the People Act, passed by the House as HR 1 and now before the Senate as S 1. For example, the bill would require independent redistricting commissions and automatic voter registration in every state — two reforms that do not favor either party and that have gained bipartisan support in state legislatures and state referenda.
While some of the consequences from the new Georgia law are not likely to be as dire as many claim, its enactment is a significant negative step for the country — a step away from democratic principles and toward a symbolic transformation of falsehood into law. Democracy has been ill-served by this development.
- Nationwide push for voting restrictions barrels forward - The Fulcrum ›
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- It's been a busy few days for voting rights issues in Ga. - The Fulcrum ›
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- Senate Democrats take voting rights fight to Georgia - The Fulcrum ›
There's no guarantee that Mitch McConnell will allow Jon Ossoff (left) and Raphael Warnock to take their seats in the Senate without a fight.
Next Capitol stress test for democracy: What if the Senate won't seat Georgia's winners?
The Senate election results in Georgia have Democrats dancing in the streets and democracy advocates cheering another seemingly successful high stress election. Turnout was extraordinary for a runoff, election officials performed efficiently, and fears of conflict and voter intimidation proved unfounded.
But there could be trouble ahead. Jon Ossoff and Raphael Warnock will not officially become senators, and cannot swing control of Congress to their party, until they are seated by the Senate. That normally mechanical procedure could become the next round in our never-ending partisan dogfight.
If either Republican candidate contests the results — as President Trump and his allies will surely insist — it will not be Georgia's stalwart secretary of state, Brad Raffensperger, with the last word on who won. Nor will it be the Georgia Supreme Court, or even the U.S. Supreme Court.
The "Judge of the election of ... members" of the Senate, according to the Constitution, is the Senate itself.
For the vast majority of elections to both the House and Senate, this quirk — let's be more honest, this flaw — in our founding document does not pose a problem. Normally, with losers having conceded, the House and Senate dispense with a vote and permit the state-certified winners to take their seats.
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But little else has happened normally this year, and with control of the Senate in the balance and Mitch McConnell still in charge, we should not be surprised if another challenge to our democracy is ahead.
McConnell did try to protect the Electoral College count from objections, but he did so less on principle than to avoid politically difficult votes for his caucus. At least for the election between Ossoff and David Perdue, the closer of the two on Tuesday, there are certain to be GOP claims asserting Perdue's victory. McConnell will be tempted to call for the Senate to investigate before seating a winner — which would mean depriving himself of the gavel.
In a parallel situation from 23 years ago, the GOP-controlled Senate seated the state-certified winner in Louisiana, Democrat Mary Landrieu, even as an investigation dragged on for months before affirming her 5,000-vote victory. By that precedent, McConnell should arrange for a vote to seat Ossoff and Warnock as soon as their victories are certified.
Maybe the terrible events at the Capitol on Wednesday will bring a stop to such brinkmanship, but it should not be surprising if McConnell again ignores a precedent that interferes with his exercise of power.
Adding to the complexity are at least two contested elections where legislative bodies are playing a role. In Pennsylvania, the GOP-controlled General Assembly is refusing to seat the state-certified Democratic winner of a close state Senate election until a legal challenge is completed.
In the House, Speaker Nancy Pelosi has agreed that the House Administration Committee will investigate the claims of Democrat Rita Hart, who is asking the House to use its constitutional prerogative to overturn her loss in Iowa's 2nd District. Pending the outcome, the House has seated her Republican opponent, Mariannette Miller-Meeks, certified by the state as the winner by a scant 6 votes.
The most legendarily bitter incident of the House using this power was 35 years ago. The Democratic majority voted to seat one of their own, Frank McCloskey of Indiana, after the state certified the winner as Republican challenger Richard McIntyre. Selective acceptance of evidence by the majority-run panel that investigated the dispute produced a four-vote McCloskey margin and led to a Republican walkout in protest. Subsequent investigations by journalists made clear McCloskey should not have been declared the winner.
Pelosi should take steps to avoid that kind of outcome in the Iowa contest — and to set a model for any Senate investigation of the Georgia elections. The House Administration Committee has seven Democrats and three Republicans, so Pelosi should see to it that a subcommittee with equal representation of both parties is given charge of the investigation. If the panel deadlocks, the victory for Republican Miller-Meeks as certified by the state should remain in force.
Doing so would put pressure on McConnell to conduct any Senate investigation in a similar bipartisan manner. And the Senate should follow both its own precedent and the House's approach to Miller-Meeks and promptly seat the state-certified winners from Georgia pending any investigation.
More broadly, there are lessons here from the fact that our Founders gave Congress judgment over the election of its own members. Writers of a constitution today would not take that path because of the clear conflict of interest and risk of abuse by the party with legislative control.
At the beginning of the world's long democracy learning curve, the Founders naively believed parties could be kept out of governing institutions, and they failed to anticipate how a political party could use this and other ways of controlling elections to keep itself in power.
France provides an instructive comparison. Its earlier constitutions followed the American example and gave its legislature the right to judge elections, which led to abuses. France's current Constitution, ratified in 1958, ended that practice and established a Constitutional Court as the definitive source of judgment on all national elections.
Our courts have moved over time to something of a similar role, but inconsistently and incompletely. Here as elsewhere our antiquated system is very vulnerable to the partisan will to hold power. That leaves us to hope that Senate Republicans improve on their track record and do the right thing.
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