You wouldn’t know it by watching Congress take long summer vacations and slowly mull infrastructure legislation, but Democrats are facing a fast-approaching deadline that could decide the party’s political fate for the next decade.
By August 16, the U.S. Census Bureau is scheduled to release data gathered in the 2020 census to the states, enabling state governments to begin redrawing their legislative and congressional districts.
If Democrats want to have their best shot at preventing Republicans from redrawing red states’ congressional districts in a way that could lock in a GOP House majority for a decade, they need to tweak and pass the For the People Act, their signature voting rights and democracy reform legislation, before that date.
The For the People Act would implement a series of rules and procedures designed to curb partisan gerrymandering, the process of drawing legislative districts to benefit a political party. If the bill isn’t passed before August 16, Democrats could modify its language to ensure some parts of its anti-gerrymandering provisions could take effect retroactively — but not all of the legislation’s original redistricting reforms would be preserved this way. There’s also a risk that some Democrats may end up happy representing new, safely Democratic districts, and thus be less interested in passing reforms.
As of today, the bill has completely stalled. It failed in the Senate last month due to a Republican filibuster, and since a handful of conservative Democrats have steadfastly refused to eliminate or modify Senate filibuster rules requiring 60 votes to advance virtually all legislation, Republicans can continue to block the legislation indefinitely.
It’s not clear how or when Democrats are planning to pass the bill. In recent weeks, Democratic lawmakers in the House and Senate have instead focused on negotiations over infrastructure legislation, a key priority of the Biden White House.
Both legislative houses are currently scheduled to be on recess for much of August. Senate Majority Leader Chuck Schumer, D-N.Y., recently indicated he could keep senators in Washington for part of the August recess period — but specifically to work on passing infrastructure legislation.
“The Next Great Civil Rights Bill”
The For the People Act was supposed to be the Democratic Party’s response to ongoing efforts by Republicans to restrict voting rights across the country. Supporters describe it as a democracy infrastructure bill or, as Elizabeth Hira, a policy counselor with the Brennan Center for Justice, calls it, “the next great civil rights bill.”
“Not only is it beating back voter suppression, the likes of which we’ve been fighting since before 1965 with the Voting Rights Act, it actually does the forward-looking work to ask the question about what structural changes would need to exist in our democracy to actually create an inclusive democracy,” Hira says.
To that end, the legislation would establish redistricting rules that include enhanced protections against minority voter dilution, mandate states use independent federal commissions to oversee their redistricting, and require transparency and public participation in the redrawing process.
For Democrats, the need to pass such a package could not be more urgent. Every 10 years, following the release of updated demographic data from the U.S. Census Bureau, states redraw congressional and legislative districts. Republicans, who dominated state legislative elections last year, have proven to be willing to use the redistricting process to their extreme advantage.
And yet Democrats remain paralyzed on the issue — a problem stemming from the top.
On the campaign trail, President Joe Biden announced that “a first priority of a Biden Administration will be to lead on a comprehensive set of reforms like those reflected in the For the People Act (H.R. 1) to end special interest control of Washington and protect the voice and vote of every American.”
As president, Biden followed this rhetoric with gestures signaling a desire to overhaul American democracy to be fairer and more inclusive. After the House passed its version of the For the People Act in March, he released a statement that he was looking forward to signing the bill into law. Days later, Biden signed an executive order requiring federal agencies to expand ballot access.
The White House and Democrats even mobilized top brass to back the legislation. Vice President Kamala Harris has led the administration’s voting rights efforts, while former President Barack Obama and ex-Attorney General Eric Holder held a teleconference last month urging Congress to compromise in order to get an iteration of the For the People Act passed.
Despite these gestures, however, the For the People Act remains stymied. On June 22, a vote to debate the bill failed in the Senate — much to the chagrin of activists who, for months, have been calling on Senate Democrats and the Biden administration to embrace eliminating the filibuster.
Running Out Of Time
Time is running out to pass the For the People Act, says Michael Li, the redistricting and voting counsel at the Brennan Center For Justice. He says August 16, or shortly thereafter, is the deadline for Democrats to pass a bill containing “the most robust [redistricting] reforms possible.”
“You could pass some things after August 16. The partisan gerrymandering ban, for example, could be retroactive,” he says. “But other things like the procedural requirements (the transparency and public participation requirements) could not be implemented.”
But making parts of the bill retroactive could leave it less politically viable, says Li because, as he notes, “As a practical matter, the politics of passage... potentially become more complicated once [redistricting] maps are passed.” That’s because members of the House, including Democrats, could in some cases end up pleased with their newly redrawn districts, and therefore less interested in redoing them by passing the legislation.
Because Democrats have waited so long to pass the For the People Act, even if lawmakers find a way to pass the bill before the August 16 deadline, they will now have to rewrite some of its language regarding nonpartisan redistricting if they want it to apply this cycle.
“It is too late to create federal commissions to draw maps, so even though that is still technically in the bill, it won’t be possible and will need to come out of any final bill,” says Li. “But there is time to implement national map-drawing rules, including a ban on partisan gerrymandering.”
A “Drunken Bacchanalia of Gerrymandering”
The uncertainty about whether Democrats will actually pass the For the People Act and whether it would even make a difference in the redistricting process is concerning for advocates who say there is a unique danger in Democrats not using their current control of the government to do away with gerrymandering once and for all.
“I would have come out of the gates with a partisan gerrymandering bill,” says author David Daley.
Few would know better than Daley. His 2016 book, Ratf**ked: The True Story Behind the Secret Plan to Steal America's Democracy, recounts how the GOP weaponized the redistricting process after the 2010 midterms in defiance of unfavorable demographic trends.
The plan was called REDMAP and it was simple: pour money into state races to control the process and use it to disempower the opposition. The results were devastating for Democrats.
Democrats did not regain control of the House of Representatives until the 2018 midterms, despite winning a majority of votes in congressional races in 2012, and have faced uphill battles at the state level ever since.
A 2017 study from the Brennan Center described the impact: “In the 26 states that account for 85 percent of congressional districts, Republicans derive a net benefit of at least 16-17 congressional seats in the current Congress from partisan bias — significantly more than previously thought.”
Now, Daley predicts that unless legislation is passed to stop it, this redistricting cycle will be a “drunken bacchanalia of gerrymandering,” making what came before seem tame by comparison.
Law professor Lawrence Lessig shares Daley’s concerns. Speaking to The Daily Poster, Lessig predicts that “the gerrymandering we saw in 2010 is going to be gerrymandering on steroids in 2020.” Lessig notes that in 2010, “people were still worried that the Supreme Court was going to come in and strike down extreme partisan gerrymandering, but now the court said, ‘We’re not going to do anything.’”
The Supreme Court decision Lessig was referring to came down in June 2019 in the case of Rucho v. Common Cause. The court found that partisan gerrymandering was a political issue, and therefore not reviewable by federal courts.
The Rucho decision is not the only one clearing the path for extreme gerrymandering. Six years earlier, in the case of Shelby County v. Holder, the court struck down a key provision of the 1965 Voting Rights Act that laid out the metrics used to determine which jurisdictions needed to obtain federal preclearance before changing their voting laws. The court found that the old standard — which applied to places with a history of racial discrimination — was no longer adequate and left it to Congress to find a new, workable formula. But lawmakers never came up with a substitute.
At the time, Greg Abbott, then Texas Attorney General, lauded the decision, noting: “Redistricting maps passed by the Legislature may... take effect without approval from the federal government.”
The warnings of Daley and Lessig are likely prophetic. Democrats took a drubbing in down-ballot elections in 2020, despite Joe Biden’s campaign pledge to retake state legislatures.
Making matters worse for the party is its unilateral disarmament in the redistricting wars. In the last decade, several Democratic states, including New York, Colorado, and California, have implemented nonpartisan redistricting measures since the last census, while big red states have not. Most of the 31 states in which state legislatures draw the districts as a partisan matter are controlled by the GOP.
All Talk And No Action
Since the failure of the For the People Act in the Senate, Biden has continued to speak about the need for voting rights reform.
Last week, the president pointed out that 17 states have enacted “28 new laws to make it harder for American to vote, not to mention nearly 400 additional bills Republican members of state legislature are trying to pass.” He labeled the GOP efforts “the 21st century Jim Crow assault.”
“It's the most dangerous threat to voting and the integrity of free and fair elections in our history," Biden said.
Despite the tough talk, Biden stopped short of calling for Senate filibuster reforms that might allow Democrats to actually do anything about the threat.
Some Democrats, like House Majority Whip Jim Clyburn, D-S.C., have now started pushing to exempt voting rights legislation and other constitutional measures from the filibuster.
It’s a weak proposal, especially since it would mean the filibuster would continue to block major Democratic priorities like overhauling climate policy, reforming labor laws, and increasing the federal minimum wage.
With less than a month left before the census data is set to be released to the states, these efforts and all of the talk about preserving voting rights may be too little, too late. Unless Democrats manage to spring into action, quickly and decisively, Biden may never have full control of Congress again.
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