The Case for a Democratic Environment

UPDATE (9/9/22): FiveThirtyEight updated their partisan lean metrics hours after I published this. The story has been updated to reflect the new data.

Special election charts and results as well as the above generic ballot polling average are by FiveThirtyEight. I wanted to credit them in the captions but WordPress is being dumb.

I think people are underestimating how likely it is that we’re in at least as favorable an environment for Democrats in 2022 as we were in 2020. Yes, Democrats are only ahead on the generic ballot by 1.2% at the time of this writing, whereas in 2020 they were ahead by 7.3%. But the polling in 2020 was notoriously bad. Democrats only wound up winning the House popular vote by 3.1%. That’s a 4.2% miss! In 2018 – when Trump was not on the ballot – the generic ballot got things exactly right. It predicted Democrats winning by 8.6% and they won by 8.6%.

The ‘Trump effs up the polls’ theory is going to be tested again this year (it makes sense since he destroys everything else that I love!) but in the meantime, let’s assume the generic ballot is correct, or at least close to correct (lets say for the sake of argument ±2%, which is in between the 4% error 2020 and the 0% error in 2018). Then the environment is anywhere from R+1 to D+3. So either slightly worse than 2020 or about the same.

But we also have other figures to go by, namely special elections. The advantage of special elections is that they aren’t polls. They’re actually elections where people go out and make a choice. The disadvantage is that they are usually low turnout affairs that attract only the most politically engaged. Still, they usually are pretty predictive. In the special elections since Dobbs, Democrats have been overperforming by between 7 and 11 points (depending on how you count Alaska).

So based on the generic ballot and special elections we can say that we’re in anywhere from an R+1 environment to a D+11 environment. To be clear, I don’t think we’re in a D+11 environment, so let’s use D+7 (the conservative calculation of special elections) as our high. So the environment is anywhere from R+1 to D+7, for a median of D+3. That puts us in basically the exact same environment we were in in 2020, when Democrats won 222 seats.

So Democrats should expect to win 222 seats? Not so fast. You forgot about redistricting! There’s a number of different ways to calculate the effect of redistricting but I think the easiest way is to look at how many districts Biden won. On the old map Biden carried 224 districts. On the new map he would have carried 225, according to Redistricter.

But Democrats ran 1.5% (or 2 seats) behind Biden; one of the reasons their House majority is so thin. So instead we can look at each district’s partisan lean or (PVI) using data from FiveThirtyEight. In a D+3 year Democrats should expect win every district with a PVI <R+3. This would give us a final result of 220D-215R. In an R+1 year it would be 206D-229R. A D+7 year would give Dems 237 seats, one more than they won in 2018, which makes me think we’re not in a D+7 environment (though stranger things have happened). So going by PVI we’re looking at Democrats winning anywhere from 206-237 seats, with the median being 221.5.

Another way of looking at it is to use FairVote’s Monopoly Politics Projections, which allow you to estimate each party’s share of seats based on different environments. I like this better because it uses toss-ups (so I have less likelihood of being wrong). In a D+3 environment there are 218 safe/lean D seats and 181 safe/lean R seats, with 36 toss-ups. 218 is the exact number you need to win the House. An R+1 environment gives us 209R-183D with 43 toss-ups. They don’t allow you to calculate D+7 but back of the napkin calulation tells me there’d be about 232 lean/safe D seats.

So going by FairVote, Democrats could expect to win anywhere from 183 seats (an R+1 environment where Republicans win all the toss-ups) to 254 (a D+3 environment where Democrats win all the toss-ups) with the median being 218.5. In a D+7 environment, Democrats would win close to 280 seats if they won all the toss-ups, but nobody’s had that kind of majority since the 1970s so I’m going to assume that’s not going to happen. Let’s stick to 254 (D+3 w/ all toss-ups) as our high.

So based on my read of the current environment Democrats are favored to win around 221.5 seats using PVI or 218.5 seats using FairVote’s projections. I guess this was all a long winded way of me saying that things are really freaking close! Also, someone’s going to have to be chopped in half. I suggest Marah Palintola.

Ranked choice voting is hard!

Redistricting Revisited

With New Hampshire finally figuring out how to draw a single line, the redistricting cycle is finally over. Despite things ending on a sour note – with the Florida Supreme Court refusing to strike down DeSantis’ extreme gerrymander in time for the 2022 midterms – reform advocates have a lot to be proud of. Michigan is the ultimate success story, with their new redistricting commission drawing what is easily the fairest map in the country. Colorado’s first cycle with an independent commission was also a success and though Virginia’s bipartisan commission failed to agree on a map, it got kicked to the court, which ended up enacting a very fair map. Though the process was ugly, the end result was a success.

Courts also stepped in in New York after Democrats overrode their independent commission and drew a highly gerrymandered map. That map got struck down and an extremely competitive map has taken it’s place. North Carolina, and Maryland also saw their maps get struck down by state courts and replaced with much fairer maps (though North Carolina’s is only in effect for 2022).

There were also some notable failures. Ohio’s new redistricting reform failed to produce a fair map and Republicans instead passed a highly skewed map. After that map got struck down by the state Supreme Court, Republicans passed another map that was barely any fairer. A challenge to that map is ongoing but Republicans were able to successfully run out the clock as far as the 2022 is concerned. The Kansas Supreme Court overruled a lower court ruling and allowed a Republican gerrymander to go into effect, and after Alabama’s map was struck down by a federal district court for violating the Voting Rights Act, the US Supreme Court stepped in and reinstated the map saying it was too close to the election. Similarly Louisiana‘s map got struck down by a state court only to be reinstated on appeal.

Then, of course, there’s the states that never really had a chance of being fair because they were controlled by one party and there were no protections in place to stop rampant gerrymandering. As expected, Texas, Georgia, and Illinois passed rigged maps unencumbered by any commissions or courts, and though Texas’ map could run afoul of the Voting Rights Act, it’s hard to see the current Supreme Court striking it down. Democrats in New Mexico, despite there only being 3 districts, drew a highly gerrymandered map that gives them an edge in all 3 districts – though this could backfire as Democrats have spread their voters pretty thin. New Mexico could end up being our dummymander of the cycle.

So what did we learn? Well we learned that not all reforms are the same. Independent redistricting commissions perform better than bipartisan ones (the difference being that independent commissions have at least one member not affiliated with either party to break a tie), though having only one tiebreaker, as in Arizona and New Jersey, can also be problematic. Then, of course, there were the loopholes in Ohio and New York‘s redistricting reform laws that allowed Republicans and Democrats respectively to bypass their commissionsm, which brings us to state courts. Since the Supreme Court washed it’s hands of redistricting in Rucho v Common Cause, it’s been up to state courts to reign in gerrymandering. But as we learned this year, state courts don’t enforce their rules evenly. New York’s court struck down their map, as did North Carolina’s, but Florida’s court has let their map stand – despite it clearly violating the Fair Districts amendment passed by voters in 2010. Ohio’s court failed to act quickly enough to strike down their new map and as a result it will be in place for at least 2022.

If there’s any pattern it’s that courts in blue states are much more willing to enforce fair maps than courts in red states, and as a result Democrats once again find themselves on the losing end of redistricting, with the national map slightly favoring Republicans.

For an interactive chart go to: bit.ly/redistrictingtracker

The new map has about a 15 seat bias in favor of Republicans, and though there are 6 more Democratic seats on the new maps than on the old ones, when you consider incumbency Democrats actually ended up losing 3 seats.

bit.ly/redistrictingtracker

Democrats will complain about unilateral disarmament, and they have a point. Many of Democrats’s biggest weapons, blue states like California, New York, and Colorado, were taken off the board by redistricting reform while Republicans were left to gerrymander Texas, Florida, and Georgia to their heart’s content. But the answer was never for Democrats to out-gerrymander Republicans. The answer is, and always has been, to pass national redistricting reform. We could have done so by passing the Freedom to Vote Act, and I personally believe that one of the reasons Democrats failed was because, at the time, it looked like they were actually going to come out ahead in redistricting. This turned out to be premature and now Democrats will reap what they have sewn.

Overall this redistricting cycle wasn’t as bad as many had feared, but it wasn’t nearly as good as reformers had hoped for. Many of these battles will continue playing out in the courts over the years and I have a feeling numerous states will have to redraw their maps, but for all intents and purposes this redistricting cycle is over. If it leaves a sour taste in your mouth, like it does in mine, all I can say is: there’s always next decade!

Gerrymandering: The Real Voter Fraud

Steve Nass, CC BY-SA 4.0 https://creativecommons.org/licenses/by-sa/4.0, via Wikimedia Commons

The left and the right are locked in a never-ending battle between what’s worse: voter fraud or voter suppression? The truth is, neither. Neither is that much of a problem in this day and age. And both are a distraction from what is really disenfranchising people: gerrymandering.

How does gerrymandering disenfranchise people? Well the entire point of gerrymandering is to force the other party’s voters to “waste” their votes. A vote is considered wasted when it’s cast for a losing candidate or anything cast for the winner above 50%. If you think about it, it doesn’t matter whether someone wins with 51% of the vote or 81% – they still win – so that extra 30% of voters could have been put to much better use in other, more competitive districts. Similarly, in a district where a party routinely wins 81% of the vote, the 19% of voters who voted for the other party might as well have just stayed home. They know their vote isn’t going to matter much. Anyone who lives in a state that routinely votes one way or the other in a Presidential election (I’m looking at you New York!) knows the feeling.

In a perfect world nobody’s vote would be wasted. Unfortunately we don’t live in a perfect world. So long as we have single-member districts with winner-take-all elections where the winner need only win a plurality (as opposed to a majority), a certain number of votes are going to be wasted. The next best thing is to have each party’s share of wasted votes be about equal. If each party is wasting votes at around the same rate, that means the map is probably pretty fair.

Which brings us to the efficiency gap. The efficiency gap is a way of measuring the difference between each party’s share of wasted votes. If Democrats, for instance, waste 20% of their votes, and Republicans waste 30%, then the efficiency gap is 10% in favor of Democrats.

The goal of the gerrymanderer is to maximize the number of votes the other party wastes, while minimizing the number of their own party’s wasted votes. Another way of looking at is, their goal is to maximize the efficiency gap in their own party’s favor. They do this through what’s called packing an cracking. To go back to our above example, Republicans may pack Democratic voters into a district where their candidate routinely wins 81% of the vote while the surrounding three districts give Republicans about 55-60% of the vote. This would result in a region that is 1D-3R, even if there are an even amout of Republicans and Democrats in the region. If that 30% of Democratic voters were to be unpacked and spread more effieiently into the surrounding districts, a Democrat could win 2 or more of those districts.

The Dallas/Forth Worth area is a good of packing in action. Voters in Dallas and Fort Worth are packed into those three oddly shaped districts in order to create four Republican districts. Biden won this area by more than a million votes (which is more than Trump won the entire state of Texas by).

Forth Worth/Dallas area has 3 Democratic districts and 4 Republican districts

Cracking is where you take an area that has a high concentration of one party’s voters and you split them up into multiple districts so they represent a minority in each. The Orlando area is a good example of this. It’s split up into 5 seperate districts, 3 of which lean Republican – despite the fact that Biden won this area by more than 17 points.

The Orlando region is split into 5 seperate districts, 3 of which lean Republican

All of this should be far more offensive to people than supposed voter fraud or voter suppression. This is literally a case of politicians choosing their own voters, instead of the other way around. The stated goal of gerrymandering is to dilute the power of your vote by either putting you in a district where you’ll never be able to elect a candidate of your choice, or where your candidate would be elected no matter how you vote. I can promise you, this has much bigger effect on the power of your vote than voter fraud ever will, and it does far more to disenfranchise people, especially people of color, than any of the new voting laws that have been signed into law recently.

With the focus on voter fraud and voter suppression we’ve turned a blind eye to the real threat to our democracy: gerrymandering, and by obsessing over the last election and claiming it was”rigged” we’re allowing politicians to literally rig the next one. Let me leave you with this: the map isn’t yet completed but if things hold more than 90% of US House races this year will be uncompetitive. Control of Congress isn’t going to be decided in November. It’s being decided right now. Pay attention.

What the Heck is Going on With Voting Rights?

I’m sure many people are wondering: what in the heck happened yesterday? Well Leader Schumer actually did something quite brilliant, in my opinion. I don’t know, maybe this has been done before but it’s the first I’m hearing of it. Basically Schumer used a bill that already passed the Senate, in this case a NASA bill, as a shell for the Freedom to Vote Act and John Lewis Voting Rights Advancement Act. The House will vote on amendments to add the text to the NASA bill and then send it back to the Senate. The new bill, called the Freedom to Vote: John R Lewis Act (I know, they should have named it the John R Lewis in Space Act or something!) can be brought up for debate in the Senate with a simple majority – because a different version, the original NASA bill, already passed the Senate.

The fact that Schumer was able to use existing Senate rules to get around a filibuster on the motion to proceed and bring the bill up for debate tells me his head’s in the right place. I’ve been arguing for months now that a rules change using the “nuclear option” was unlikely, as Manchin and Sinema still seem staunchly opposed, but there are ways around a filibuster using existing rules.

So what happens next? Well today the House will vote on the amendments then pass the bill and send it back to the Senate. The Senate can then bypass the filibuster and immediately move to consideration of the bill. Republicans will still be able to block a final vote though, which Democrats still need to find a way around.

The least likely way around it is that Democrats will find 60 votes to invoke cloture and end debate. The second least likely way is for Democrats to use the “nuclear option” to create a voting rights carve-out – similar to what Harry Reid did in 2013 or what Mitch McConnell did in 2017 for Supreme Court nominees. The most likely option, and one Manchin has floated in recent days, would be to go back to the ‘present and voting’ standard for invoking cloture.

Let’s back up a second. In 1975 the threshold for cloture [ending a filibuster] was changed from two-thirds of those present and voting to three-fifths of the entire Senate (60 votes). This was supposed to make it easier to break filibusters but it ended up having the opposite effect. Since it now took 60 votes to end a filibuster no matter how many Senators were actually present, the entire burden was on the majority to find the votes (maybe they should call Brad Raffensperger). The minority didn’t even have to show up. Going back to three-fifths of those ‘present and voting’ will mean the minority will at least have to make sure they have enough Senators on or near the floor to deny the majority three-fifths.

The end result would be that this would make talking filibusters more likely, because they’ll be easier to defeat. And the minority will have to be more selective about when to employ the filibuster – since it’s going to require most of their caucus to be on or near the floor. This option also has the benefit of not being such a radical change. It would simply restore the Senate rules to what they used to be. Still, this would likely require Democrats to change the rules using the ‘nuclear option,’ something Manchin still seems against.

The final option is for Democrats to break the filibuster using existing Senate rules. This would be grueling and time consuming but, as a last resort, could work. There’s nothing in the Senate rules saying that debate needs to be ended by cloture. The other way to end debate, the way they used to do it, is to simply ‘call the question.’ Once everyone who wants to speak has spoken the clerk will call the roll and the measure can pass by a simple majority. The problem with this is, the minority can keep that vote from taking place by continuously holding the floor (a talking filibuster). Members can switch off talking and offer amendments and motions that could theoretically keep the filibuster going indefinitely. Though the minority would only need one member holding the floor to maintain the filibuster, the majority needs all their members there to make sure there’s always a quorum present (51 Senators), otherwise the Senate will recess, which only aides the filibustering Senators’ efforts to delay.

Still, there’s reason to believe that Republicans couldn’t keep the filibuster going forever. Government funding runs out February 18th and I’m sure Republicans don’t want to force the government into a shut down eight months before an election. I’m also sure they would rather be out there campaigning and fundraising, something they can’t do if they’re stuck in Washington filibustering. These would be powerful incentives to end their filibuster, especially if it seems Democrats are not caving. It becomes a game of wills.

So as you can see there are a number of options available for Democrats to get around a filibuster and get voting rights over the finish line. Which option they choose remains to be seen. The one thing I can tell you: it’s going to be very interesting!

The Biden Theory of the Case

It’s easy to get lost in the minutia of day to day politics but I really think people are missing the forest for the trees. In the grand scheme of things Biden’s little spat with Manchin and Build Back Better isn’t really going to matter. The bill will pass and disappointment about what gets left on the cutting room floor will inevitably fade and give way to excitement about what IS in the bill. Think about the argument we’re having right now: Do we want universal pre-k or or a universal child allowance? Should we make the largest investment ever in combatting climate change or the largest expansion of affordable healthcare in a over a decade? Or maybe we should focus on the greatest expansion of civil rights and voting rights since 1965? These are not bad problems to have.

I just don’t buy all the punditry saying Joe Biden misread his mandate or made a mistake by going too bold and now people are inevitably going to be dissapointed. It’s easy to play Monday morning quarterback but let’s game out some other scenerios. Biden ran on a bold, progressive platform. What would have happened if he said, “Never mind. I only got 50 votes in the Senate, so all that stuff I said I was gonna do – I’m not even going to try.” He would have had a progressive revolt and thrown away any chance of doing anything. Biden has a difficult task before him – keeping the disparate factions of the Democratic party together and united behind his agenda – and in my opinion (Manchin spat aside) he’s done so masterfully.

I just finished reading Evan Osnos’ biography of Joe Biden (you can thank my long layover in Texas for that). I highly reccommend it. It really helps you understand what he’s doing and why he’s doing it. Here’s the Biden theory of the case: the only way to save our democracy is to prove that a democratically elected government can deliver results for people. Put another way, the only way to defeat Trumpism is to show Trump’s supporters that their voices are being heard and that they don’t have to turn to someone like Trump to get a government responsive to their problems. That’s why Biden’s been so singularly focused on Build Back Better. It’s why he’s billed the infrastructure bill a “blue collar blueprint to rebuild America.” And it’s working. Wage growth for those without a college degree has outpaced wage growth for those with a degree since January 2021 – the longest period on record.

The bad actors are going to act bad – that’s what they do – the only thing we can do is make the outrage they’re peddling less appealing. Remember: the outrage machine only amplifies anger and resentment, but there has to be an existing base of anger and resentment for it to amplify, and though you’re never going to remove all the things that make people angry or upset, you can reduce it to a level that is sustainable. Just like how reducing transmission of the virus allows society to function normally, reducing anger and resentment to a sustainable level will allow democracy to function. The only way out is through helping people, not punishing them.

Of course governing effectively is only one piece of the puzzle. There’s an important second piece too. If making the bad actors less appealing is step one, reforming democracy to shore up the weaknesses exposed by the bad actors is step two. Biden has gotten a lot of flack (including from me) for not paying enough attention to voting rights. Bad actors all across the country are using the “Big Lie” as an excuse to pass restrictions that make it harder to vote, and they’re likely to continue in 2022. Passing both the Freedom to Vote Act and John Lewis Voting Rights Advancement Act will push back against these state level restrictions and also put an end to gerrymandering, which causes increased polarization by making elections less and less competitive.

In order to pass both of these bills we will need to reform the filibuster – though filibuster reform shouldn’t be thought of as a means to an end, rather, reforming the filibuster is itself essential to saving our democracy. The fact is that one of the reasons people no longer believe democracies can deliver is because whichever party is out of power does their damnest to make sure the party in power can’t get anything done. Giving the minority a blanket veto over the majority’s agenda is insane and runs counter to the way our democracy was designed. Fixing the filibuster will allow our government to function as intended and be more responsive to the needs of it’s people – instead of our current state of affairs where politicians make big promises on the campaign trail that are impossible for them to fullfill once in office.

Finally, we need to update the Electoral Count Act to clarify the Vice President’s role in the counting of electoral votes and also what constitutes grounds for challenging a state’s votes. It’s unclear at this point whether this is something Democrats will have to do on their own or whether there’s enough establishment Republicans (I’m looking at you Mitt Romney) to pass a filibuster proof bipartisan bill. Obviously for big changes like this you’d prefer it to be bipartisan but if going it alone is the only way then that’s the route Democrats must take. This is just too important. Besides, both the 14th and 15th Amendment, which gave citizenship and voting rights to freed-slaves, passed on party-line votes.

Biden has not paid nearly enough attention to voting and democracy reform in the first year of his presidency but it looks like that is starting to change – a very welcome sign for those of us worried about the future of democracy.

Biden has a great task ahead of him: literally saving American democracy. But if he can pass Build Back Better, voting rights and election reform, on top of the infrastructure and COVID relief bills he’s already passed, that would go a long way towards meeting his goal of proving democracies can function. It would also safeguard our democracy against future attacks. I don’t know if it will save Democrats in the midterms but I would still call it a success – and though this has been said about every President, I think it’s the case now more than ever: Biden’s success is America’s success.

It’s Officially a Midterm Year

Now that it’s officially 2022, it’s time for the midterms to kick into full gear! Republicans are bullish on their chances and, judging by the wave of Democratic retirements, so are Democrats. We all know by now that one of the golden rules of American politics is that the President’s party loses seats in their first midterm, and with Democrats already holding extremely slim majorities, their hold on power is hanging by a thread. But Democrats have a couple of things going for them that could help them buck history:

First, the Senate map actually looks good for Democrats. Republicans are defending 20 seats and Democrats 14. Moreover, Republicans are defending two seats in states that Biden won while Democrats are defending zero seats in states that Trump won. I’m not saying Democrats can’t lose the Senate, just that if they lose the Senate they’ve almost certainly already lost the House that’s the least of their worries.

Second, with a little bit of luck we’ll have COVID behind us and the economy roaring again by November. That should help put some wind behind the Democrats’s backs – so long as they make sure to get credit for it. We’re on track to have more than 80% of the country vaccinated by November, as well as a good portion of the world, and inflation is expected to fall precipitously this year. The latest projection from the Fed had core PCE falling to 2.6% by the end of the year.

Third, the Republican party is tying itself to an unpopular President who’s voters only seem to only come out when he’s on the ballot. That’s bad politics, which Democrats can take advantage of. Democrats need to continue challenging Republicans on the extremism within their ranks and their refusal to disavow Trump. Most voters don’t like Trump. Democrats should take advantage of that fact and remind voters that Republicans are the ones who empowered Trump, appeased Trump, and are ultimately responsible for January 6th. Thankfully it looks like the 1/6 Committee is going to get to the bottom of things, and while the investigation should not be done with the aim of helping Democrats, it nonetheless will remind voters of what Republicans created.

A note on Virgina: There’s a risk of Democrats learning the wrong lessons from Virginia. The lesson isn’t to not talk about Trump, it’s to do so wisely. Instead of trying to tie every single person with an (R) in front of their name to Trump, Democrats should simply challenge them on some of Trump’s more anti-democratic tendencies and remind voters that, with Trump likely to run again in 2024, who counts the votes really matters.

Finally, Democrats have a President who’s intent on doing popular things. This is a good political strategy and should help them heading into November.

So if Democrats hope to win in 2022 they need to get COVID and the economy under control, remind voters of Republicans’ extremism problem, and continue to govern effectively and do popular things. But there’s one more piece to the puzzle: democracy reform.

Democrats need to reform democracy so they can govern effectively and, more importantly, protect the country from the anti-democratic forces threatening to pull it down. That means reforming the filibuster first and foremost. In today’s politics it’s difficult for any President to live up to expectations when the out-party has a blanket veto over their entire agenda and no incentive to work with them. I’ve often said that my goal for 2022 is for Democrats to lose because they deserve it, not because the system is rigged against them. Yes that’s a low bar, but it hasn’t always been clear that they would be able to meet it. While it looks like Democrats are going to dodge a bullet with redistricting, there’s still plenty of voter suppression and election subversion laws being introduced and passed in states that could make it more difficult for Democrats to win. Passing the Freedom to Vote Act, the John Lewis Voting Rights Advancement Act, as well as updating the Electoral Count Act are key, not only to Democrats holding onto their slim majorities, but to America remaining a democracy (obviously an ECA update won’t affect the midterms but it’s important nonetheless).

So will Democrats hold onto the House and Senate? Probably not, but all hope is not lost. In 1998 and 2002 the President’s party bucked history and actually gained seats in the midterms. In 1998 it was backlash to Republicans’ impeachment of Bill Clinton. Democrats can hope for a similar backlash to Republicans’ continued embrace of Trump and Trump-backed extremists. In 2002 it was because of 9/11 and the rally around the flag effect. While it’s hard to see Americans rallying around the flag for anything these days, maybe coming out of the COVID emergency will foster some similar goodwill (I’m not holding my breath).

Or maybe pure desperation will put Democrats over the top. The fact is, if they lose in November, they’re likely to be out of power for a very long time.

Analysis: Who Gains From Redistricting

There have been many reports about which party stands to gain or lose from redistricting this year, but any redistricting analysis that doesn’t take into account how gerrymandered the maps already were is going to fail to capture how skewed they will be going forward. For instance, Texas’ delegation is not likely to dramatically change next year, but that doesn’t mean it’s map is not gerrymandered. Instead, to understand a party’s advantage we need to compare their map to what would be considered a”fair” map. That’s what I do for this article.

I take a look at the 10 most gerrymandered states and compare them to what would be considered “fair.” For “fair” maps I use the proposed map with the lowest efficiency gap according to FiveThirtyEight or, if no “fair” map was proposed, the “most proportional” map from Dave’s Redistricting. Finally, for the sake of this analysis, I’m only using maps that have been enacted or are just awaiting the governor’s signature. Here’s what I found:

North Carolina:
Fair map: 6R-4D-4C
Actual map: 10R-3D-1C
Difference: +4R, -1D, -3C

Ohio:
Fair: 9R-4D-2C
Actual: 11R-2D-2C
Diff: +2R, -2D

Utah:
Fair: 3R-1D
Actual: 4R
Diff: +1R, -1D

Georgia:
Fair: 7R-6D-1C
Actual: 9R-4D-1C
Diff: +2R, -2D

Oregon:
Fair: 1R-2D-3C
Actual: 1R-4D-1C
Diff: +2D, -2C

Illinois:
Fair: 3R-9D-5C
Actual:3R-11D-3C
Diff: +2D, -2C

Texas:
Fair: 17R-14D-7C
Actual: 24R-13D-1C
Diff: +7R, -1D, -6C

Oklahoma:
Fair: 4R-1C
Actual: 5R
Diff: +1R, -1C

Massachusetts:
Fair: 6D, 3C
Actual: 9D
Diff: +3D, -3C

Alabama:
Fair: 4R-1D-2C
Actual: 6R-1D
Diff: +2R, -2C

Total:
Fair: 54R-47D-28C
Actual: 73R-47D-9C
Difference: +19R, +0D, -19C

So Republicans have gained a total of 19 seats so far in those 10 states and Democrats basically break even. The biggest loser seems to be competitive districts, of which there are 19 fewer under the gerrymandered maps.

Note: This is an imperfect analysis and Democrats are likely to pick up a few seats in New York, though some of that could be cancelled out by Florida, depending on how agressive Republicans want to be there. The other pick-up opportunity for Democrats is in Maryland, but it looks as though they could only really net one seat at most from gerrymandering. The conclusion remains the same. Republicans are the big winners of redistricting and competition is loser.

That is, of course, unless Congress passes the Freedom to Vote Act, which would end partisan gerrymandering. But they need to get it done by the end of the year before maps are solidified for 2022. With Congress’s year end to do list piling up that’s looking less and less likely.

Will 2022 be 2012 all Over Again?

In 2012 Democrats won the House popular vote by 1.17 million but Republicans won a 33 seat House majority. It was only the second time in 70 years that a party has won the popular vote but didn’t win a majority of the seats. This wasn’t an accident. In 2010, following their wave election, Republicans agressively gerrymandered the maps, resulting in the largest bias in the House in half a century. The median-district bias, which measures the difference between the popular vote and the vote in the median district was 5.5%. This means that Democrats would have had to win the popular vote by more than 5.5% in 2012 in order to win a majority of the seats. In 2016 Republicans also enjoyed a 5.5% median district bias, though at least this time they actually won the popular vote. To put that bias into perspective, it’s bigger than Trump’s electoral college advantage in both 2016 and 2020.

Another way of looking at it is to compare the percentage of the vote won to the percentage of seats won. This is called the “seat bonus bias.” In 2012 Republicans won 48% of the House vote but they won 53.6% of seats, giving them a seat bonus of 5.6%. That was the highest in two decades. Now, of course, some of this bias is due to geography, and Democrats being inefficiently clustered in big cities, but it’s worth nothing that just two years earlier, in 2010, when Republicans gave Obama and Democrats their famous “shellacking” their seat bonus was only 4.2%.

A seat bonus is not unusual. Generally whichever party wins the majority also tends to enjoy a seat bonus and the more you win by the larger your bonus, but that wasn’t the case in 2018. Despite Democrats’ “blue wave” Republicans still got a seat bonus of .4%. The median district bias was even worse that year. Democrats should count their lucky stars that they won the popular vote by 7.3%. Had they won it by 3.9% they likely would have lost the House. In 2020 Democrats finally enjoyed their first seat bonus of the decade. A whopping .4%.

Obama easily won in 2012 and Democrats actually gained seats in the Senate. The American people chose Democrats to control the House too but because of gerrymandering Republicans were able to hold onto their House majority. The rest is history. Instead of starting his second term with unified Democratic control, Obama spent his second term seeing his agenda frustrated by a unified Republican block.

Democrats have a decent chance of holding onto the Senate in 2022 – they will only be defending 14 seats compared to Republicans’ 20 – but the House is a different story. Since World War II the President’s party has lost seats in 17 of 19 midterms – an average loss of 27 seats a year. Democrats currently hold a four seat advantage in the House. Holding onto that slim majority is already going to be an uphill battle. It will become nearly impossible if Democrats allow Republican gerrymandering to go on unencumbered.

That’s why it seems insane to me that Democrats aren’t showing more urgency to get the Freedom to Vote Act passed, which would end partisan gerrymandering. There’s no hard and fast deadline for when the bill needs to get passed in order for it to effect 2022, but with maps already being enacted and the first primary coming up in March, the window is closing fast. If Democrats don’t act soon they’ll almost certainly lose their majority, and they’ll deserve it.

Pass the Freedom to Vote Act

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The Freedom to Vote Act comes up for a vote this Wednesday. A vote that is likely to fail to a Republican filibuster, after which, Democrats will have to choose whether to reform the filibuster in order to pass this legislation, or whether to let an undemocratic rule stand in the way of protecting democracy. To me it’s an easy choice. This legislation is more important than a Senate rule, especially one that has itself done much harm to our democracy. In fact, I would argue that the Freedom to Vote Act is the single most important piece of legislation in my lifetime. It shouldn’t be a priority of the Democratic majority it should be THE priority.

The Freedom to Vote Act makes voting easier and more accessible by requiring 15 days of early voting, including two weekends, vote-by-mail for all who want it, and minimum standards for ballot drop boxes, including requiring jurisdictions have at least one or 25% (whichever’s bigger) available 24/7. It would make election day a public holiday and restore voting rights to the formerly incarcerated after they’ve paid their debt to society.

Not only does the bill make it easier to vote, it also makes it easier to register to vote, requiring states allow automatic, same-day, and online voter registration. It strengthens voter list maintenance requiring states use “objective and reliable evidence” of a voter’s ineligibility before removing them from the rolls, not things like failure to vote or failure to return mail.

For those concerned about election integrity, there’s plenty in the bill for you too! The bill creates a national standard for states that require voter ID. It requires states use paper ballots that can be verified by voters so every vote has a paper trail. It also requires states perform reliable post-election audits and it provides grants for states to upgrade outdated election equipment and make improvements to cybersecurity.

The bill also goes further than the For the People Act by creating a judicial protection of the right to vote, and prohibiting governments from placing undue burdens on someone’s ablity to vote unless it furthers a significant government interest and is the least restrictive way of furthering that interest. This means that states could no longer place restrictions on voting based on hypothetical voter fraud, they would actually have to prove that fraud exists and that their restriction is the least restrictive way of combatting it.

The piece of the bill I’m most excited about is the fact that it would finally end partisan gerrymandering once and for all by making it illegal to draw a map with the intent or effect of unduly favoring or disfavoring a political party. It also creates clear judicial standards by which to prove something is an illegal partisan gerrymander and an expedited judicial process so maps can be struck down within weeks of enactment, not years.

Finally the bill prevents election subversion by insulating nonpartisan election administrators from partisan influence and protecting election workers from threats and intimidation.

There’s much more to the bill, including provisions that reduce he influence of big money and protect from foreign interference, but if you’re still reading I should count myself lucky and end here: Protecting democracy mean ensuring everyone can participate in that democracy. It means making sure voters choose their representatives, not the other way around. And it means when weaknesses are discovered, putting in meaningful guardrails to shore up our democracy and protect from those who wish to subvert it. There’s much more we need to do to protect our democracy, incuding passing the John Lewis Voting Rights Advancement Act and updating the Electoral Count Act, but this bill is a huge step in the right direction.

For more information on the bill go to: https://bit.ly/freedomtovoteact

Initial Thoughts on the Freedom to Vote Act

Democrats today (or yesterday, depending on how long it takes me to write this) unveiled their long awaited voting rights compromise bill aptly called the Freedom to Vote Act. The bill is not as far-reaching as the For the People Act but goes farther than the proposal Manchin released in June. Frankly, it’s a lot bolder than I expected and would represent a huge step forward for our democracy.

The Freedom to Vote Act would require states provide automatic voter registration, online registration (yes, some states still don’t have that), and same-day registration. It requires states to allow vote-by-mail for all who want it, and prohibits requiring ID to vote-by-mail other than a signature or the last four digits of your social security number. It bans notarization requirements and witness signatures, which some states use to make vote-by-mail more onerous. It would require states accept absentee ballots postmarked by election day and would require states allow 3 days for voters to “cure” their ballots (this would neuter the new Texas law that requires missing signatures be cured by 7:00 pm on election day). The bill also requires 15 consecutive days of early voting (at least 10 hours per day) ending no sooner than the day before the election. It creates a minimum requirement for the number of ballot drop boxes in each jurisdiction and requires at least one or 25% of drop boxes (whichever’s greater) in a jurisdiction be accessible for 24 hours a day; directly rebutting Georgia’s law that limits the number of drop boxes and makes them only available during early voting hours.

As far as redistricting is concerned, the bill no longer requires independent redistricting commissions but it still includes a statuatory ban on partisan gerrymandering. It also includes what’s called a rebuttal presumption, which means that if anyone challenges a map as in violation of the act, a court must decide within 15 days whether a presumption of such a violation exists. If so, the court can keep the state from using the map pending further review. This section does two very important things. One is the fact that court cases tend to take time, and often by the time a map is struck down a number of elections have already taken place on that unfair map. Under this provision a court could bar a state from enacting a map within 15 days. The other thing it does is it buys Congress some time. The bill says that a challenge can be brought within 30 days of enactment of a map or enactment of the bill. That means that even if states have already enacted their maps before the the Freedom to Vote Act is passed, those maps could still be overturned quickly after the law is passed if they’re found to be in violation.

There’s also election security measures like requiring states to use paper ballots that can be verified by voters and requiring states conduct reliable election audits. The bill includes the DISCLOSE Act and HONEST ADS Act, which create new disclosure requirements for Super-PACs and online ads and, unlike the For the People Act, it includes text from the Preventing Election Subversion Act which bars states from removing local election officials for anything other than, “gross negligence, neglect of duty, or malfeasance in office.”

There’s much more to the bill. I suggest you read this summary here for more information or you can read the text of the bill here, but ultimately this bill trims the fat, gets rid of the more controversial stuff, keeps all the important stuff, and includes measures to protect against election subversion. It would make our democracy stronger, our elections more secure and would represent the largest expansion of the right to vote since the Voting Rights Act of 1965. It’s now it’s up to Democrats to get it over the finish line. God speed Joe Manchin. Good speed.