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.

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.

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.

How to Pass Voting Rights (Without Getting Rid of the Filibuster)

Photo by Artem Podrez on Pexels.com

When the Senate returns on Monday from their August break, they’ll have a lot on their plate: reconciliation, a bipartisan infrastructure bill, raising the debt ceiling; but perhaps nothing on their agenda is more important or more urgent than voting rights. Luckily there is still a path forward for Democrats if they choose to take it, and contrary to popular belief, it doesn’t necessarily involve eliminating or even necessarily reforming the filibuster (though doing so would undoubtedly make the path forward easier). In this piece I will explain the path forward on voting rights and why the window for action is closing fast.

First a word on Senators Joe Manchin and Kyrsten Sinema. Progressives have been needling them for months now to support ending the filibuster and neither of them has budged. Manchin has voice tepid support for some modest reforms, but Sinema has only dug in further. I can’t tell you how many times I’ve heard people say, “just convince Manchin,” as if he wasn’t the most stubborn person in the world and as if convincing someone to do something against their interests when you have absolutely no leverage on them wasn’t a complete waste of time; and there’s no time to waste. With the release of the census data last month the process has already begun to draw new Congressional maps. The further along states get in that process, the harder it will be to unravel extreme partisan gerrymanders. That’s why most experts believe that if a bill isn’t passed by the end of September, it will probably be too late. With the Senate not getting back until half the month is nearly gone that gives them an incredibly small window for action.

Still, all hope is not lost and there is a path for passing meaningful reforms in time to affect redistricting and the 2022 elections. Majority Leader Chuck Schumer teed up a vote on the For the People Act as well as on a standalone redistriting reform bill as the first order of business when the Senate returns on Monday. He also made clear that Democrats plan to replace the text of the For the People Act with a slimmed-down version that Democrats have been working on with Manchin. It’s imperative that by the time the Senate gets back they have the text of the Manchin compromise bill finished, otherwise Republicans will be able to hide behind the excuse that they’re voting against the more controversial (though still wildly popular) For the People Act instead of a slimmed-down package of modest reforms. This wouldn’t be ideologically inconsistent for Republicans, who last month voted against moving forward on the bipartisan infrastructure bill until the text was finished. In order to put maximum pressure on Republicans, we need to eliminate any excuse they can hide behind for blocking voting rights.

Nonetheless we should expect Republicans to filibuster. At that point Democrats should bring up the John Lewis Voting Rights Advancement Act, which the House passed last month. Once again Republicans will filibuster and it’s at that point that Democrats should take one more swing at trying to convince Manchin and Sinema, and any other members of their caucus who may be on the fence, to agree to make changes to the filibuster so that the bill can be passed.

It would be lovely if this were the end of the story, if Manchin and Sinema would have an epiphany and agree to eliminate the filibuster so that the bills can pass by a simple majority – but that is unlikely to happen. When Manchin and Sinema do refuse, it’s time for a good old fashioned talking filibuster. As I’ve pointed out in the past, bringing back the ‘talking filibuster’ doesn’t require any rule changes. It doesn’t require the consent of Manchin or Sinema or anybody else, it just requires some procedural maneuvers by Majority Leader Schumer. This will be painful (there’s a reason we don’t have talking filibusters anymore) but you know what they say: if you want to pass voting rights you’re going to have to sit through a few days of Ted Cruz reading banned Dr Seuss books. Desperate times man, desperate times.

There’s another reason Democrats need to do this as soon as they get back on Monday. That is because government funding runs out September 30th. This provides Democrats with leverage as there will be extra pressure on Republicans to end their filibuster so that the Senate can pass an appropriations bill and avoid going into a costly government shutdown. I have no doubt Republicans would shut down the government to block voting rights, but how long do we think they could keep it going? As workers are furloughed, SNAP benefits dry up, and people can’t get benefits for social security and medicare – eventually Republicans will fold.

We haven’t seen a talking filibuster in awhile so people may not be familiar with how it ends but it’s fairly simple. Once everyone who wants to talk is finished talking, and Senator can “ask for the yays and nays,” on the question and the measure can be advanced by majority vote.

So that’s it right? We’re done? Well, not exactly. Now we’ve got to do it all over again because the pending question that the Senate just voted on – and spent weeks debating – was whether to begin debate. Next the Senate must vote on the measure itself. This can also be filibustered but if we’ve just spent weeks enduring a talking filibuster, its highly unlikely that anyone will have the appetite for another one.

So that’s the path ahead. Is it easy? No. Is it painful? Yes. Is it the only way? It’s looking increasingly likely that’s the case. There is a clear path forward on voting rights. Democrats just need to choose to take it.

The Deadline for Redistricting Reform

The most important piece of the For the People Act (S1), in my humble opinion, is the part about redistricting reform. It’s also the most urgent, since it needs to get passed soon if it’s going to effect the 2021 redistricting cycle. But when exactly is soon? While S1 doesn’t lay out a specific date after which time it will no longer apply to 2021 redistricting, there are some deadlines laid out in S1 that should give us clues as to when this needs to be passed. They are as follows:

June 1, 2021, establish the non-partisan agency to appoint members of the independent redistricting committee

June 15, 2021, appoint the Select Committee to approve or disapprove the selection pool

July 15, 2021, submit the selection pool for the independent redistricting commissions

August 1, 2021, select committee approves or rejects the pool

August 5, 2021, first 6 members appointed to the independent redistricting committee

August 15, 2021, last 9 members appointed to the committee

November 15, 2021, commission approves a final redistricting plan

December 15, 2021, courts publish redistricting plan (if a triggering event occurs)

Triggering events, which would require a 3 judge court in the state’s capital or the District of Columbia to draw the maps, include failure to establish the non-partisan agency by the deadline, failure to appoint the select committee by the deadline, failure to approve the selection pool by the deadline, or failure of the committee to approve a redistricting plan by the deadline. Since we’ve already missed the first two deadlines those triggering events mean that, if S1 is passed, a 3 judge court will be drawing the maps for 2021.

The courts are supposed to develop and publish a redistricting plan no later than December 15th, so the deadline for passing redistricting reform depends on how long it would reasonably take a court to develop and publish a final map. The process, as laid out in S1, inlcudes a public evidentuary hearing, as well as a 14 day period where the plan and underlying data are made available for public comment.

The final triggering event laid out in S1 is November 15th, which is when the independent redistricting commissions are supposed to approve a final map. This would seem to suggest that the authors believed November 15th is the latest the process can begin in order for the courts to finish and publish a plan by December 15th.

So it looks like November 15th is likely the latest we can get redistricting reform passed in order for it to count towards the 2021 cycle, though even that would be cutting it close. Ultimately after digging through the over 800 pages of legislation for answers I find myself right back where I started: the sooner the better!

Why Redistricting Reform is the Most Important Item on Democrats’ Agenda

Today, for the first time, Joe Manchin endorsed redistricting reform, including a ban on partisan gerrymandering and taking mapmaking out of the hands of politicians once and for all. Manchin has good timing, since just today I was working on this piece about why redistricting reform is the most important item on the Democrats’ agenda. Everything else should take a back seat to ensuring that the districts drawn in 2021, which will be used for the next decade, are fair and impartial. The reason is simple: everything else on Democrats’ agenda is dependent on them holding onto the House and Senate in 2022.

The Senate, of course, isn’t effected by redistricting and Democrats have a good shot of holding onto the chamber in 2022, since Republicans will be defending 20 of the 34 Senate seats up for reelection. Democrats might even pick up a seat or two if they have a really good year. This is especially important since we’ve seen the limits of what a 50-50 Senate, with Joe Manchin as the swing vote, is able to accomplish. They couldn’t even create a bipartisan commission to investigate an attack on their own chamber. I see little hope for things immigration reform, gun safety, police reform, and while they do have two more shots at reconciliation, there’s a limit to what can pass through that process (it must be related to budget or spending) and it’s not even clear Democrats have the 50 votes needed use the reconciliation process to pass priorities like President Biden’s American Jobs Plan or American Families Plan, as Manchin is yet to sign onto either. Picking up a Senate seat or two will give Democrats a little more breathing room, but none of that will matter if they lose the House.

Now before I’m accused of admitting that the Democrats’ push for voter access and redistricting reform is some kind of power grab, let me start by saying something black people have been telling white people who feel threatened by the push for equal rights for years: equality feels like oppression when you have privlege. Republicans have privledge when it comes to the distribution of power. They currently have an advantage in every branch of government, and though there’s nothing Democrats can do about the electoral college or the Senate, both of which were designed to protect the rights of small states, the House, by definition is meant to be representative of the people. Unfortunately, because of partisan gerrymandering, Republicans have consistently held an advantage, which is how they won House majorities in 1996 and 2012 while losing the popular vote. This could get worse after the next redistricting cycle. Republicans have the sole power to draw the lines for more than 2.5X as many districts as Democrats (187 vs 75). I have no doubt they will use that power to gain maximum political advantage (as I’m sure Democrats would do if they were in the position). So ending gerrymandering may seem like a Democratic power-grab but it’s not. It’s just levelling the playing field.

So what does redistricting reform look like? Well one thing both the For the People Act and the Manchin proposal have in common is a ban on partisan gerrymandering. This is important because the Supreme Court decided a few years ago that there’s nothing they can do about partisan gerrymandering. Currently only racial gerrymandering is illegal. Putting a statuatory ban on partisan gerrymandering would give the Supreme Court the ability to strike down maps that are created to unduly favor one party over another. But a ban on partisan gerrymandering isn’t enough. Court cases take time, and often by the time the maps are struck down multiple elections have taken place on them.

Both Manchin’s compromise and the For the People Act would also change how maps are drawn, so it wouldn’t take years of litigation to get a fair map. Most states still have their legislatures draw the maps, with approval from the governor. If one party happens to control all the levers of power, they can’t help but draw maps to cement their own power. The For the People Act’s solution is to require states to create independent redistricting commissions to draw maps. The commissions would be made up of 5 Republicans, 5 Democrats, and 5 independents. In order for a map to be enacted it would need to be approved by at least one member of each party.

Manchin on the other hand proposed using computer models. This runs into some problem with bias if you’re solely relying on the computer to draw maps, since it would still take a person making choices about inputs and picking a map from the thousands the computer spits out, but it would still be better than the system we have now. Another option is using computer modelling to shoe that a map drawn by a person is biased by proving that a less biased map could have been drawn and therefore the human drawn map was intended to unduly favor or disfavor a political party. It’s unclear from Manchin’s proposal which route he plans to take.

History is not on Democrats’ side heading into 2022. The President’s party has lost seats in the House in 17 of the last 19 midterms since WWII, losing an average of 27 seats. That would be more than enough to wipe out the 5 seat majority Democrats currently hold. If they lose the House in 2022, they’re not likely to regain unified control of government again for the rest of Biden’s Presidency, since the Senate map in 2024 heavily favors Republicans and 2026 will be another midterm.

Despite these headwinds I still believe that Democrats can buck the trend and hold onto their majorities. They should have a fair bit of wind at their back heading into 2022, with the economy roaring and COVID in the rearview plus Biden seems to understand what is the most underappreciated rule in politics: if you want people to like you, do things that they like. He seems to, wisely, only be going after the low-hanging fruit at the start of his Presidency, i.e. pursuing things that have broad bipartisan support. This should keep him, and by extension Democrats, fairly popular heading into 2022. Finally Republicans seem to be doing everything in their power to blow it; leaning into or at least failing to push back on Trump and the rest of the crazies in their party. Turning off the very suburban voters they lost in 2018 and 2020. Potentially for good.

Democrats will only be able to capitalize on these trends if they ensure that the next election happens on a level playing field. They may still lose. In fact I’d still say Republicans are favored, but at least if they lose it will be because voters rejected the Democratic agenda and not because of unfair maps that put a thumb on the scale, and that is the least we should expect of our democracy.