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      Constitutional Challenges Loom Over Proposed Voting Bill

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      The sprawling legislation, known as H.R. 1, could result in lawsuits leading to a dozen Supreme Court cases, legal experts said.WASHINGTON — If the sweeping voting rights bill that the House passed in March overcomes substantial hurdles in the Senate to become law, it would reshape American elections and represent a triumph for Democrats eager to combat the wave of election restrictions moving through Republican-controlled state legislatures.But passage of the bill, known as H.R. 1, would end a legislative fight and start a legal war that could dwarf the court challenges aimed at the Affordable Care Act over the past decade.“I have no doubt that if H.R. 1 passes, we’re going to have a dozen major Supreme Court cases on different pieces of it,” said Nicholas Stephanopoulos, a law professor at Harvard.The potential for the bill to set off a sprawling constitutional battle is largely a function of its ambitions. It would end felon disenfranchisement, require independent commissions to draw congressional districts, establish public financing for congressional candidates, order presidential candidates to disclose their tax returns, address dark money in political advertising and restructure the Federal Election Commission.The bill’s opponents say that it is, in the words of an editorial in The National Review, “a frontal assault on the Constitution” and “the most comprehensively unconstitutional bill in modern American history.”More measured critics take issue with specific provisions even as they acknowledge that the very nature of the bill — a grab bag of largely unrelated measures — would make it difficult to attack in a systematic way. In that respect, the anticipated challenges differ from those aimed at the Affordable Care Act, some of which sought to destroy the entire law.John O. McGinnis, a law professor at Northwestern University, said the bill went too far, partly because it was first proposed as an aspirational document rather than a practical one in 2019, when Republicans controlled the Senate and it had no hope of becoming law.“It seems very willing to brush past, at least in some cases, some relatively clear constitutional provisions,” he said, citing parts of the bill that require presidential candidates to disclose their tax returns and force advocacy groups to disclose their contributors.In March, 20 Republican state attorneys general said they were ready to litigate. “Should the act become law,” they wrote in a letter to congressional leaders, “we will seek legal remedies to protect the Constitution, the sovereignty of all states, our elections and the rights of our citizens.”Representative John Sarbanes, Democrat of Maryland and one of the lead authors of the package, said drafters had written it with a fusillade of Republican legal challenges in mind and were confident that it would “survive the great majority of them” in the Supreme Court.“I’m extremely comfortable that we built this to last,” Mr. Sarbanes said. “We think that the components are ones that are well girded against constitutional challenge — even by a court that we can imagine will probably start from a place of favorability to some of these challenges.”Democrats have made the bill a top legislative priority. But with Republicans united in opposition in the Senate, its path forward is rocky.Before a key committee vote this month, proponents of the overhaul are expected to introduce a slew of technical changes meant to address concerns raised by state elections administrators. But pushing it through the full chamber and to President Biden’s desk would require all 50 Senate Democrats to agree to suspend the filibuster rule and pass it on a simple party-line vote, a maneuver that at least two Democrats have so far rejected.Speaker Nancy Pelosi spoke at a news conference promoting H.R. 1 in March. Democrats have made the bill a top legislative priority.Anna Moneymaker for The New York TimesSome scholars have urged congressional Democrats to concentrate their efforts on narrower legislation, notably the John Lewis Voting Rights Advancement Act, which seeks to restore a key provision of the Voting Rights Act that the Supreme Court effectively eliminated by a 5-to-4 vote in 2013 in Shelby County v. Holder.The provision, the law’s Section 5, required states with a history of discrimination to obtain federal approval before changing voting procedures. In the Shelby County decision, the court ruled that the formula for deciding which states were covered violated the Constitution because it was based on outdated data.“Congress — if it is to divide the states — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions,” Chief Justice John G. Roberts Jr. wrote for the majority.The John Lewis Voting Rights Advancement Act, named for the civil rights leader who served in the House for more than three decades until his death last year, responds to that invitation by updating the coverage formula. Whether the Supreme Court — which has become more conservative since 2013 — would uphold the new formula and allow Section 5 to be restored is an open question, but the Shelby County decision at least allows Congress to try.Similarly, the court’s precedents suggest that not all of the anticipated challenges to the much broader H.R. 1 would succeed.As a general matter, few doubt that Congress has broad authority to regulate congressional elections because of the elections clause of the Constitution.To be sure, the clause specifies that “the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”The clause’s next phrase, though, allows federal lawmakers to override most of the power granted to state legislatures: “But the Congress may at any time by law make or alter such regulations, except as to the places of choosing senators.”The elections clause, supplemented by other constitutional provisions, Professor Stephanopoulos wrote in an article to be published in the journal Constitutional Commentary, means that “even the bill’s most controversial elements lie within Congress’s electoral authority, and Congress could actually reach considerably further, if it were so inclined.”But he acknowledged that there was controversy over the sweep of the provision. In a majority opinion in 2013, Justice Antonin Scalia wrote in an aside that the clause “empowers Congress to regulate how federal elections are held, but not who may vote in them.” That statement was in tension with the controlling opinion in a 1970 decision that allowed Congress to lower the minimum voting age in congressional elections to 18 from 21.The Supreme Court justices last month. The court has become more conservative since 2013, when it effectively eliminated a key provision of the Voting Rights Act.Erin Schaff/The New York TimesIf the statement from Justice Scalia is followed, it would raise questions about language in H.R. 1 that seeks to restore voting rights to people with felony convictions who have completed their sentences in states that would otherwise disenfranchise them.Several scholars said the provision might be vulnerable to a legal challenge. “That’s probably the most obvious red flag,” said Franita Tolson, a law professor at the University of Southern California.The Constitution grants Congress considerably less authority over presidential elections than congressional ones, allowing it to set only the timing. But some Supreme Court opinions have said the two kinds of authority are comparable.The bill’s requirement that states create independent commissions to draw congressional districts could also lead to litigation. Such commissions were upheld by a 5-to-4 vote in 2015 in Arizona State Legislature v. Arizona Independent Redistricting Commission.Justice Ruth Bader Ginsburg, writing for the majority, said Arizona voters were entitled “to address the problem of partisan gerrymandering — the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.”With changes in the makeup of the Supreme Court since then, the Arizona precedent might be vulnerable, said Travis Crum, a law professor at Washington University in St. Louis.“In litigation over the 2020 election, several justices — including Justice Brett Kavanaugh — questioned the validity of that precedent,” Professor Crum said. “Given the possibility that the court might overturn that decision in the near future, it is even more imperative that Congress step in and mandate the use of independent redistricting commissions for congressional districts.”In dissent in the Arizona case, Chief Justice Roberts wrote that the Constitution specified that only state legislatures had the power to draw congressional maps. Four years later, though, writing for the majority in rejecting a role for federal courts in addressing partisan gerrymandering, he wrote about independent commissions created by ballot measures with seeming approval and said Congress also had a role to play, citing an earlier version of H.R. 1.Representative John Lewis of Georgia outside the Supreme Court in 2013. A voting bill named for him seeks to restore enforcement of Section 5 of the Voting Rights Act, after the court effectively eliminated it.Chip Somodevilla/Getty ImagesThe provision in H.R. 1 establishing a public financing system appears to be consistent with current Supreme Court precedentsIn 2011, by a 5-to-4 vote, the court struck down a different Arizona law, which provided escalating matching funds to participating candidates based on their opponents’ spending. But Chief Justice Roberts, writing for the majority in the case, Arizona Free Enterprise Club v. Bennett, indicated that more routine public financing systems remained a valid constitutional option.“We do not today call into question the wisdom of public financing as a means of funding political candidacy,” Chief Justice Roberts wrote. “That is not our business.”Some of the disclosure requirements in H.R. 1 have drawn objections from across the ideological spectrum. The American Civil Liberties Union has said that it supports disclosures tied to “express advocacy” of a candidate’s election or defeat. The bill goes further, though, requiring disclosures in connection with policy debates that refer to candidates.That measure, two A.C.L.U. lawyers wrote in The Washington Post in March, “could directly interfere with the ability of many to engage in political speech about causes that they care about and that impact their lives by imposing new and onerous disclosure requirements on nonprofits committed to advancing those causes.”“When a group is advocating policy changes outside the mainstream,” they continued, “they need privacy protections to be able to speak freely and without fear of reprisal.”The Citizens United decision in 2010 upheld the disclosure requirements before it by an 8-to-1 vote, but a pending Supreme Court case, American for Prosperity v. Bonta, might alter the constitutional calculus.Professor McGinnis said he also questioned a provision in the bill that required leaders of organizations to say they stood by the messages in political advertisements. “This seems to me to be eating up airtime without any real justification and subjecting people to harassment,” he said.He also took issue with the bill’s requirement that presidential candidates disclose their tax returns, saying Congress cannot add qualifications to who can run for president beyond those set out in the Constitution: that candidates be natural-born citizens, residents for 14 years and at least 35 years old.A 1995 Supreme Court decision rejecting an attempt by Arkansas to impose term limits on its congressional representatives appears to support the view that lawmakers cannot alter the constitutional requirements.Even if every one of the objections to the bill discussed in this article were to prevail in court, most of the law would survive. “Part of why the attack on H.R. 1 is unlikely to be successful in the end is that the law is not a single coherent structure the way Obamacare was,” Professor Stephanopoulos said. “It’s a hundred different proposals, all packaged together.”“The Roberts court would dislike on policy grounds almost the entire law,” he added. “But I think even this court would end up upholding most — big, big swaths — of the law. It would still leave the most important election bill in American history intact even after the court took its pound of flesh.”Nicholas Fandos More

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      Here's How Democrats' Voting Rights Law Would Work

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      The expansive measure would set a nationwide floor on ballot access, nullify many voting restrictions, change the way political districts are drawn and rein in campaign donations.The far-reaching voting rights measure that Democrats are pressing to enact, known as the For the People Act, was more a political statement than serious legislation when lawmakers first proposed it in 2019.The bill, clocking in at 818 pages, includes a laundry list of Democratic priorities like expanded ballot access, tighter controls on political money and support for District of Columbia statehood. It had no chance of becoming law when Republicans controlled the Senate and the White House.But with Democrats in power, the wish list has become a potentially historic law and the most pervasive overhaul of federal election rules in recent memory. Republicans have assailed it as a Democratic effort to rig the political system in their favor, even as some privately acknowledge that the bill’s broad aims are overwhelmingly popular, even among conservatives.President Biden and Democrats portray the bill as the civil rights imperative of modern times and call it essential to shoring up a shaky democracy. But many of them privately concede that some of its provisions, like restrictions on political money, have opponents in their own ranks.Here is a summary of some of the central elements of the measure:The bill would set a national floor for ballot access.Should it become law, the legislation would effectively set a national floor on ballot access, requiring all federal elections to start with an identical set of rules. States and other federal jurisdictions could tweak them to provide more access, but not less. Some states like Colorado and Minnesota have rules that are more generous that the bill mandates; others, like Texas and Tennessee, make it much harder to register and vote than the bill envisions.Jurisdictions could ignore the rules for state and local elections, but as a practical matter, the new requirements would most likely apply to all voting.Some Republicans charge that the bill would rig the voting rules in favor of Democrats. But Republican officials have been working for the past decade to restrict ballot access in ways that make it harder to vote for minority groups that traditionally favor Democrats.Beyond the civic benefits of greater participation in elections, it is clear that expanding voting to more people would benefit both parties. Indeed, as Republicans have increasingly appealed to lower-income and less-educated voters, some experts say the restrictions that they have imposed may actually be cutting into turnout by the party’s loyalists.Many Republican states have had one or more of the voting provisions for years with no indication that they disproportionately favor one party.The measure makes it much easier to register to vote.All voters would be able to register, designate party affiliations, change addresses and de-register online; 40 states and the District of Columbia offer some or all of those options. Voters would also be automatically registered when visiting state or federal agencies unless they explicitly decline, similar to what has been required of most states — but not always carried out — by the federal “motor-voter law” that passed in 1993. Voters could also register when they cast a ballot, either on Election Day or during early voting, as is already the case in 21 states.Early voting would be expanded nationwide, with all jurisdictions offering it for 15 days, for 10 hours daily, at easily accessible polling places. All but a handful of states allow early voting; the average early-ballot period is 19 days, according to the National Conference of State Legislatures. The bill would also require jurisdictions to provide at least one secure ballot drop box for every 20,000 voters.Mail voting would be extended nationwide, and states would have to prepay postage and electronically track ballots so voters know when their ballots arrive and whether they have mistakes that need to be fixed.It would defang many voting restrictions imposed by Republicans.Republicans have won enactment of voter-ID laws in most states by arguing that they are needed to combat fraud, even though the sort of in-person fraud that such rules would discourage is all but nonexistent. The bill would effectively nullify such laws, allowing voters to sign affidavits swearing to their identities rather than showing ID.The measure would also require that voters be notified at least a week before an election if their polling places have changed, and order steps to reduce long lines. Voting rights activists and specialists argue that turnout falls when polling locations are closed or changed.The legislation also tries to beat back rules adopted by some states, including Texas and New Hampshire, that make it more difficult for college students to vote. It would designate universities as voter-registration agencies and offer nonpartisan assistance to students who cast absentee ballots.Under the bill, states would be barred from taking voters off the rolls because they had not participated in recent elections, a practice that the Supreme Court upheld in 2018. Critics argue that the practice is aimed at reducing turnout.It would also restore voting rights to felons who have completed their sentences, cementing into law a practice that states have increasingly adopted but some, such as Florida, have resisted.Partisan gerrymandering would end.Among other redistricting changes, the bill would mandate that political maps be drawn by nonpartisan commissions, not by state legislatures. If a legislature refused to approve a map, a three-judge federal panel would take over drafting.A number of states have established such commissions in recent years, including Ohio and Colorado, but removing politics from political maps has proved difficult. Critics say Arizona’s Republican governor has stacked the selection process for that state’s commission, and the composition of Colorado’s new commission also has come under fire. The legislation lays out detailed instructions for choosing panel members.Political contributions would be reined in.The legislation tries to stop the flow of money to campaigns from abroad by requiring political committees to report foreign contacts, outlawing the use of shell companies to launder foreign contributions and barring foreigners from advising PACs on contributions and other political efforts. These moves and other requirements are direct responses to Russian efforts to support Donald J. Trump in the 2016 presidential campaign.The most contentious provisions would pull back the veil over so-called dark political money, whose donors are secret, and regulate independent political expenditures — mostly spending that is not expressly coordinated with a candidate — by corporations.Those provisions would counter the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission that independent expenditures are a form of free speech protected by the Constitution. The ruling effectively allowed nonprofit groups to spend unlimited amounts of money — $750 million in 2020, according to the advocacy group OpenSecrets — to support or oppose candidates or causes while keeping donors anonymous.Public corporations would require approval by boards of directors and shareholders for independent expenditures and some other political spending over $50,000.The bill would also require nonprofit groups spending money on elections or judicial nominations to disclose the donor of any contribution over $10,000 and ban shifting money between groups to disguise a donor’s identity. It would also address the growing use of political advertising on the internet, requiring for the first time that ads disclose their sponsors and that online companies keep a public list of political advertising buyers.Finally, the measure would set up new funds to match small donations to Senate and presidential candidates. The money, raised through fines on corporate lawbreakers and tax cheats, would be available only to candidates who reject political donations of more than $1,000. More

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      For Voting Rights Advocates, a ‘Once in a Generation Moment’ Looms

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      AdvertisementContinue reading the main storySupported byContinue reading the main storyFor Voting Rights Advocates, a ‘Once in a Generation Moment’ LoomsOpposition to restrictive Republican voting laws — and support for a sweeping Democratic bill — fuels a movement like none in decades. But can it succeed?Protesters demonstrating against proposed changes to Georgia’s voting laws, this month in Atlanta.Credit…Ben Gray/Associated PressNicholas Fandos and March 15, 2021Updated 9:53 a.m. ETWASHINGTON — State and national voting-rights advocates are waging the most consequential political struggle over access to the ballot since the civil rights era, a fight increasingly focused on a far-reaching federal overhaul of election rules in a last-ditch bid to offset a wave of voting restrictions sweeping Republican-controlled state legislatures.The federal voting bill, which passed in the House this month with only Democratic support, includes a landmark national expansion of voting rights, an end to partisan gerrymandering of congressional districts and new transparency requirements on the flood of dark money financing elections that would override the rash of new state laws.The energy in support for it radiates from well-financed veteran organizers to unpaid volunteers, many who were called to political activism after former President Donald J. Trump’s upset win in 2016. It is engaging Democrats in Washington and voting rights activists in crucial states from Georgia to Iowa to West Virginia to Arizona — some facing rollbacks in access to the ballot, some with senators who will play pivotal roles and some with both.But after approval of the Democratic bill in the House, the campaign to pass the For the People Act, designated Senate Bill 1, increasingly appears to be on a collision course with the filibuster. The rule requires 60 votes for passage of most legislation in a bitterly divided Senate, meaning that Republicans can kill the voting bill and scores of other liberal priorities despite unified Democratic control of Washington.To succeed, Democrats will have to convince a handful of moderate holdouts to change the rules, at least for this legislation, with the likelihood that a single defection in their own party would doom their efforts. It is a daunting path with no margin for error, but activists believe the costs for failure, given the Republican limits on voting, would be so high that some accommodation on the filibuster could become inevitable.Two left-leaning elections groups, the advocacy arm of End Citizens United and Let America Vote along with the National Democratic Redistricting Committee, plan this week to announce an infusion of $30 million to try to hasten the groundswell. The money will fund paid advertising in at least a dozen states and finance organizers to target Democratic and Republican swing senators in six of them.“We are at a once-in-a-generation moment,” said Tiffany Muller, president of End Citizens United and Let America Vote. “We either are going to see one of the most massive rollbacks of our democracy in generations, or we have an opportunity to say: ‘No, that is not what America stands for. We are going to strengthen democracy and make sure everyone has an equal voice.’”The sense of a pivotal moment is the one thing Democrats and Republicans agree on. Republicans are still inflamed by Mr. Trump’s false claims of a stolen election and the party’s unified message that voting restrictions, many of which fall most heavily on minorities and Democratic-leaning voters, are needed to prevent fraud, which studies have repeatedly shown to barely exist.“This bill is the opposite of good governance — it’s a cynical attempt by the left to put their thumb on the scales of democracy and engineer our laws to help them win elections,” said Dan Conston, president of the Republican-aligned American Action Network. “They want to limit free speech, funnel public funds into their campaign accounts, seize from states the ability to run their own free and fair elections, and then spin it like this is really all about protecting voting rights.”Ms. Muller and others are ostensibly focused on winning support for election legislation from 10 moderate Republican senators, including Lisa Murkowski of Alaska and Susan M. Collins of Maine.But with Republican leaders promising near-unanimous opposition in the Senate, Democrats and their allies are positioning voting rights as the most persuasive case for scrapping or changing the filibuster that would limit much of Democrats’ legislative agenda.Voting rights groups are hoping to sway moderate senators like Lisa Murkowski, left, and Susan Collins toward supporting the federal voting bill. Credit…Al Drago for The New York Times“It is too important an issue and we are facing too big a crisis to let an arcane procedural motion hold back the passage of this bill,” Ms. Muller said. She argued that the rollback of voting rights was an existential threat to the democracy on which all other liberal causes, from gun control to health care reform, depend.The urgency for federal action has mounted not just among Washington lobbyists and Democratic lawmakers, but grass roots groups that normally fight battles in state legislatures and city councils. Many spent the winter opposing the Republican voting agenda that included curbs on mail-in and early voting and stiffer voter ID requirements.Lawmakers in Republican-controlled states have largely rebuffed those groups, leaving Democrats to see federal action as the only possible brake on widespread voting restrictions. At the same time, a handful of crucial Republican-led states are preparing to draw new state and congressional district maps in the fall that could further tilt power in their direction and lock Democrats out of a House majority for years.Voting-rights proponents say they have not given up on stopping restrictive laws in states. The Arizona group Civic Engagement Beyond Voting, has already registered 2,000 people this year to testify remotely on proposed state legislation, with voting rights as a priority.“People are up in arms,” said Cathy Kouts Sigmon, the group’s founder. “They’re relating these bills to how they vote and how members of their family vote.”Voting-rights advocates in Georgia, who claim to have slowed or killed some restrictive bills, are aiming at local companies that have supported the bills’ sponsors, including Home Depot, Coca-Cola, Delta Air Lines and UPS. An advertising campaign led by voting and civil rights groups demands that the firms use their lobbying muscle in the Georgia statehouse to stop repressive voting bills instead of contributing to their Republican authors.“They spent most of Black History Month peppering us with Martin Luther King quotes, but now that Blacks’ future is in jeopardy, they’re silent,” Nsé Ufot, the chief executive of one participant, the New Georgia Project, said last week. “We’re using digital ads, billboards, direct action at warehouses and call centers — we’re serious. This is urgent.”One possible sign of some success: On Sunday, the Georgia Chamber of Commerce, whose members include those companies, expressed “concern and opposition” to restrictive clauses in two Republican bills.Nsé Ufot, chief executive of the New Georgia Project, speaking in Atlanta in November.Credit…Marcus Ingram/Getty Images for MoveonIncreasingly, though, the focus is on federal legislation. Ms. Sigmon’s group is recruiting Arizonans to lobby their senators on the elections bill. So are local chapters of Indivisible, a movement founded in response to Mr. Trump’s election, in Georgia and Arizona.And so have national advocacy groups. Common Cause runs weeknight phone banks recruiting backers for the bill, and says it has generated 700,000 text messages supporting it. “It’s been a pretty incredible outpouring of support, because we all know what this moment means,” said Izzy Bronstein, the group’s national campaigns manager. In Phoenix, the advocacy group Progress Arizona coordinates a statewide campaign to persuade Senator Kyrsten Sinema, a first-term Democrat, to drop her support of the filibuster. Among its tactics: billboards projected at night onto buildings and other spots, calling for an end to the filibuster and displaying the senator’s Capitol Hill phone number.In Charleston, W. Va., Takeiya Smith of the advocacy group For West Virginia’s Future works with some 70 students at six state colleges to generate calls on Senate Bill 1 to Senators Shelley Capito, a Republican, and particularly Joe Manchin III, a Democrat whose support for the filibuster is a liberal target. The group plans daily campus events this week highlighting different parts of the measure. It is in turn allied with a national coalition, the Declaration for American Democracy, that has enrolled 190 organizations to push for its passage.In Atlanta, the Black Voters Matter Fund is preparing with other groups a national campaign for Senate Bill 1 aimed at both senators and President Biden, who has expressed hope for the bill’s passage but has not actively worked for it.“He’s got to have his Lyndon B. Johnson moment,” said Cliff Albright, the group’s executive director, referring to the former president’s arm-twisting on Capitol Hill for the Voting Rights Act in 1965. “You’re president of the United States. You need to do more than hope that it passes,” he said of Mr. Biden. “He needs to use everything he’s learned over 47 years in Washington, D.C., to get this bill passed.”Democrats first introduced the elections bill in 2019 as a catchall measure to address growing public disillusionment with dark money and corporate interests in politics. But as Republican state officials have raced to target voter participation, the bill’s voting provisions have increasingly been viewed by many on the left as essential protections to American democracy — and to the ability of Democratic voters to cast ballots.If it became law, the bill would drastically expand early and mail-in voting, neuter restrictive state voter ID laws, make it harder to purge voter rolls while automatically registering all eligible voters and restoring voting rights to former felons. Those and other changes would most likely increase voter participation, especially by minority voters who disproportionately lean Democratic.Speaker Nancy Pelosi and the Democratic caucus promoted the party’s legislation on voting this month.Credit…J. Scott Applewhite/Associated PressSenators plan to reintroduce the bill this week and Amy Klobuchar, Democrat of Minnesota and the chairwoman of the Senate committee that will advance it, has promised a hearing on March 24.But what happens next is a matter of hot political and strategic debate centered on Democrats’ fight over the filibuster, where a handful of moderates so far appear unwilling to change or drop the tactic. All 50 Democrats probably would have to agree to alter the rules.In an interview, Ms. Klobuchar suggested that if senators could not agree to scrap the filibuster altogether, they could try to find a compromise, potentially allowing measures on voting and elections like Senate Bill 1 to pass with a simple majority, but not other bills.“It is so fundamental to everything else, it has to get done,” she said.Senator Chuck Schumer, Democrat of New York and the majority leader, has been less definitive but indicated last week that he, too, may view voting rights as a unique case. “If we can get some bipartisan support, great, but if not, our caucus will meet and we will figure out how to get it done,” he said in a radio interview. “Failure is not an option.”End Citizens United, Let America Vote and the National Democratic Redistricting Committee plan to run television and digital ads in Alaska, Arizona, Georgia, Maine and Pennsylvania, homes to several key swing senators. A later phase will target up to 15 red and blue states. The groups will also dispatch 50 paid staff members to states, including Mr. Manchin’s West Virginia.“We almost don’t have a choice,” said Kelly Ward Burton, president of the Democratic redistricting group. “Because of what’s happening in the states, it’s not theoretical. It’s happening right before our eyes. It would be irresponsible not to do anything about this.”AdvertisementContinue reading the main story More

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      We Still Have to Worry About the Supreme Court and Elections

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      #masthead-section-label, #masthead-bar-one { display: none }Campaign to Subvert the 2020 ElectionKey TakeawaysTrump’s RoleGeorgia InvestigationExtremist Wing of G.O.P.AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyWe Still Have to Worry About the Supreme Court and ElectionsThe justices are about to consider whether the Voting Rights Act applies to policies that restrict the vote.Contributing Opinion WriterFeb. 25, 2021, 5:00 a.m. ETCredit…Damon Winter/The New York TimesWhen the Supreme Court on Monday rejected Pennsylvania Republicans’ after-the-fact effort to invalidate late-arriving mailed ballots, it was tempting to suppose that the country’s courthouse doors had finally closed on this most litigated of presidential elections.If only it were that simple.True, in denying the Republicans’ petitions, the court didn’t issue an opinion. Of the four votes necessary to accept a case, these two cases (treated by the court as one) garnered only three. So for the official record, the only outcome in Republican Party of Pennsylvania v. DeGraffenreid and in Corman v. Pennsylvania Democratic Party was “denied.”But the three justices who would have accepted the cases — Clarence Thomas, Samuel Alito and Neil Gorsuch — issued dissenting opinions that provide both a road map and a rationale for the Supreme Court’s future intervention in the quintessentially state matter of how to conduct elections.Remember Bush v. Gore, the case that decided the 2000 presidential election, in which five justices voted to overturn the Florida Supreme Court’s handling of a statewide recount? That decision was based on a theory of equal protection so wacky that the majority opinion insisted that “our consideration is limited to the present circumstances” — that is to say, don’t dare invoke this poor excuse for an opinion as a precedent.That didn’t stop Justice Thomas from citing Bush v. Gore in his dissenting opinion on Monday, and he did so in a particularly shameless fashion. The language he cited wasn’t even from the Bush v. Gore majority opinion, but rather from a separate concurring opinion filed in that case by only three of the majority justices, who argued that the Florida Supreme Court had violated the U.S. Constitution by substituting its will for that of the state Legislature. Justice Thomas invoked that minority portion of the decision to assert that the Pennsylvania Supreme Court was constitutionally out of bounds when, citing both the Covid-19 pandemic and the collapse of the Postal Service as its reasons, it added three postelection days for lawful receipt of mailed ballots.He went on to warn that fraud was “more prevalent with mail-in ballots,” citing as evidence a 1994 Federal District Court case, an article in this newspaper from 2012 and the 2018 Republican ballot-harvesting fraud in North Carolina. Such occurrences, he said, raise “the likelihood that courts will be asked to adjudicate questions that go to the heart of election confidence.” This was the reason, he argued, that the Supreme Court should have taken and decided the Pennsylvania cases before the next election cycle.In his inventory of ballot fraud, Justice Thomas of course could not refer to fraud in the 2020 election, because there wasn’t any. Not a problem:We are fortunate that many of the cases we have seen alleged only improper rule changes, not fraud. But that observation provides only small comfort. An election free from strong evidence of systemic fraud is not alone sufficient for election confidence. Also important is the assurance that fraud will not go undetected.In other words, Justice Thomas would have it both ways: If there was fraud, the court needed to intervene, and if there was no fraud, the court needed to intervene because the fraud might simply be undetected. Despite his disclaimer, the entire structure of his opinion, suggesting that something bad had happened even if no one could prove it, is fairly read as validating the essence of the Trump narrative.Justice Alito, in a separate dissenting opinion that Justice Gorsuch also signed, was more circumspect about the fraud issue. His emphasis was the urgency of stopping state courts from substituting their judgment for that of the legislatures. He said that even though the election was over and late ballots were too few to have made a difference in Pennsylvania’s vote totals, state courts could be expected to behave in the same way in the future unless the Supreme Court used this occasion to stop them.There are several things to note about the Pennsylvania cases. The most obvious is the absence of a fourth vote. In an initial round in the Pennsylvania cases, in mid-October, Justice Brett Kavanaugh had provided Justices Thomas, Alito and Gorsuch with a fourth vote to grant a stay of the state court decision. But a stay requires five votes rather than four. With Amy Coney Barrett not yet confirmed, the eight justices divided 4 to 4, and the stay was denied without opinions. Justice Kavanaugh withheld his vote on Monday, without explanation. Maybe he decided this was a propitious time to offer some cover for Chief Justice John Roberts, who has voted in nearly all the election cases this fall with the three remaining liberal justices.Justice Barrett was also silent. During her confirmation hearing, Senate Democrats had pressed her to promise recusal from any election cases, given that President Donald Trump had said he needed a prompt replacement for Justice Ruth Bader Ginsburg so that he would have a majority of justices voting his way in any election disputes. Justice Barrett did not recuse herself from the Pennsylvania case. Perhaps her decision not to provide the fourth vote her dissenting colleagues needed was a kind of de facto recusal, in recognition that the optics of voting to hear a last-ditch Trump appeal would be awkward, to say the least.The deeper question raised by Monday’s development is why Justices Thomas, Alito and Gorsuch are so intent on what would seem to be a counterintuitive goal for conservatives: curbing the power of state courts. I’m cynical enough to think it has to do with how these three understand the position of state legislatures and state courts in today’s political climate. It’s been widely reported that Republican-controlled legislatures are rolling out bills by the dozens to restrict access to the polls, aimed at discouraging the kind of turnout that produced Democratic victories in Georgia last month. The vote-suppression effort has become so aggressive that some Republicans are starting to worry about voter backlash, according to a recent Washington Post article.State courts, on the other hand, are capable of standing in the way of this strategy. When state high-court judges are elected, as they are in many states, they typically run in statewide races that are not subject to the gerrymandering that has entrenched Republican power in states that are much more balanced politically than the makeup of their legislatures reflects. What better way to disable the state courts in their democracy-protecting role than to push them to the sidelines when it comes to federal elections.So there is no way the Supreme Court is finished with elections. Next Tuesday, as it happens, the justices will hear a crucial voting rights case. The case, from Arizona, asks the court to decide for the first time how Section 2 of the Voting Rights Act of 1965 applies to policies that restrict the vote, through such measures as voter ID requirements.Section 2, which pertains nationwide, is the major remaining provision of the Voting Rights Actfollowing the Supreme Court’s dismantling of the act’s Section 5, in the 2013 Shelby County case. That section barred certain states and smaller jurisdictions from making changes in their election procedures without first receiving federal permission, known as “preclearance.” Section 5 provided vital protection in parts of the country where racism had not released its grip on the levers of power.The issue now is whether Section 2 can be deployed to fill that gap. It prohibits any voting practice that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” It has typically been used to challenge redistricting plans that dilute the electoral power of racial and ethnic minorities. The question of whether it can be useful in challenging the wave of vote-suppression schemes, which can present complex problems of proof, hands the justices arguably the most important civil rights case of their current term.With the country exhausted and still reeling from the turmoil of the 2020 election and its bizarre aftermath, the urge not to think about elections for a while is powerful. I share it. But it’s a luxury the Supreme Court hasn’t given us, not now, not as long as some justices have more to say.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More

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      How to Keep Extremists Out of Power

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      AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyHow to Keep Extremists Out of PowerEvery political reform proposal must be judged by its ability to fuel or weaken extremist candidates.Mr. Pildes has spent his career as a legal scholar analyzing the intersection of politics and law and how that impacts our elections.Feb. 25, 2021, 5:00 a.m. ETCredit…Shay Horse/NurPhoto, via Getty ImagesAmerican democracy faces alarming risks from extremist forces that have rapidly gained ground in our politics. The most urgent focus of political reform must be to marginalize, to the extent possible, these destabilizing forces.Every reform proposal must be judged through this lens: Is it likely to fuel or to weaken the power of extremist politics and candidates?In healthy democracies, they are rewarded for appealing to the broadest forces in politics, not the narrowest. This is precisely why American elections take place in a “first past the post” system rather than the proportional representation system many other democracies use.What structural changes would reward politicians whose appeal is broadest? We should start with a focus on four areas.Reform the presidential nomination processUntil the 1970s, presidential nominees were selected through a convention-based system, which means that a candidate had to obtain a broad consensus among the various interests and factions in the party. “Brokered conventions” — which required several rounds of balloting to choose a nominee — offered a vivid demonstration of how the sausage of consensus was made. In 1952, for example, the Republican Party convention selected the more moderate Dwight D. Eisenhower over Robert A. Taft, the popular leader of the more extreme wing of the party, who opposed the creation of NATO.Our current primary system shifted control from party insiders to voters. Now, in a primary with several credible contenders, a candidate can “win” with 35 percent of the vote. This allows polarizing candidates to win the nomination even if many party members find them objectionable. (In 2016, Donald Trump won many primaries with less than 40 percent of the vote.)How can we restore some of the party-wide consensus the convention system required? The parties can use ranked-choice voting, which allows voters to rank candidates in order of preference. This rewards candidates with broad appeal to a party’s voters, even if they have fewer passionate supporters. In this system, a candidate intensely popular with 35 percent of the party’s voters but intensely disliked by much of the rest would not prevail. A candidate who is the first choice of only 35 percent but the second choice of another 50 percent would do better. Ranked-choice voting reduces the prospects of factional party candidates. Presidents with a broad base of support can institute major reforms, as Teddy Roosevelt, Franklin Delano Roosevelt, Lyndon Johnson and Ronald Reagan demonstrated.Reform the party primariesMany incumbents take more extreme positions than they might otherwise endorse because they worry about a primary challenge.One way to help defang that threat is to eliminate “sore-loser” laws. These laws, which exist in some form in 47 states, bar candidates who have lost in a party primary from running in the general election as an independent or third-party candidate. Thus, if a more moderate candidate loses in a primary to a more extreme one, that person is shut out from the general election — even if he or she would likely beat the (sometimes extreme) winners of the party primaries. One study finds that sore-loser laws favor more ideological candidates: Democratic candidates in states with the law are nearly six points more liberal and Republicans nearly nine-to-10 points more conservative than in states without these laws.Though Alaska has a sore-loser law, Senator Lisa Murkowski’s 2010 re-election is still instructive. That year, as an incumbent, she lost the Republican primary to a conservative candidate endorsed by the Tea Party and Sarah Palin. But the state permitted an exception to the sore-loser law for write-in candidates, and Ms. Murkowski, running as a write-in Republican candidate, won the general election.If sore-loser laws are eliminated, that reform should be combined with ranked-choice voting in the general election. That would ensure that in a multicandidate general election, the winner would reflect a broad consensus. Other ideas for restructuring primaries to minimize the existence of factional candidates include one adopted by Alaska voters in November: The top four candidates in a single primary move on to the general election, where the winner is chosen through ranked-choice voting.Reform gerrymanderingMany reformers agree on the need to take redistricting out of the hands of partisan state legislatures and give it to a commission. In several recent state ballot initiatives, voters have endorsed this change. But that still raises a question: What constitutes a fair map?Redistricting reform should have as a goal the creation of competitive election districts. Competitive districts pressure candidates from both the left and the right, which creates incentives to appeal to the political center. They also encourage more moderate candidates to run in the first place, because they know they have a greater prospect of winning than in a district whose seat is safe for the other party.In safe seat districts, as long as a candidate survives the primary, that person is assured of winning the general election — which means primary candidates don’t have to move toward the center.The sources of centrism in the House or Senate frequently come from politicians in swing districts or states. In the recent House impeachment, for example, the percentage of Republicans elected with 57 percent of the vote or less who voted for impeachment was more than double that of Republicans elected with more than 57 percent of the vote. Similarly, it was Democrats holding competitive seats who resisted the initial impeachment of President Trump, until news broke of his call with Ukraine.Not every district can be made competitive. But in 2018, maps that emphasized competitiveness could have produced at least 242 highly competitive districts, although only 72 races actually were competitive. The more senators and representatives who face competitive pressures in their general elections, the larger the forces of compromise and negotiation will be in Congress.The goal of creating competitive districts should not take a back seat to approaches that focus on whether the partisan outcomes match vote shares in a particular map. In these approaches, the closer a plan comes to matching the number of seats one party gets to its statewide share of the vote, the fairer that map is deemed to be. So, if 55 percent of the statewide vote goes to Democrats, then Democrats should have roughly 55 percent of the seats in the state Legislature and the U.S. House delegation from the state. The problem comes when a fair partisan map produces candidates, in getting to that 55 percent overall, who are all elected from seats so safe for one party, they never have to compete for voters in the center.If we want to reduce extremist forces in our politics, candidates should have to appeal to a diverse set of interests and voters in competitive districts as much as possible.Reform campaign-finance reformThe way campaigns are financed also has major effects on the types of candidates who run and win.Campaign-finance efforts are now rightly focused on “leveling up” campaign dollars — by providing public funds to candidates — rather than trying to “level down” by imposing caps on election spending. That shift is partly a result of Supreme Court doctrine, but also of the difficulties of narrowing the number of channels through which money can flow to candidates.But publicly financed elections can take at least two different basic forms, and the form taken can have significant ramifications for whether the forces of extremism are further accentuated or limited.In the traditional form of public financing, which is used in around 11 states that have public financing, the government provides grants of campaign funds to the qualified candidates.In the other form — which has taken up much of the reform energy in recent years — the government provides matching funds for small donations. This based on a matching-funds program that has existed in New York City for a number of years.The campaign-finance reform proposal that House Democrats passed after the 2018 midterms, which is now a focus of the Democratic agenda, would include a small-donor matching program. The legislation would provide $6 in public funds to candidates for every dollar they raise in small donations (those of $200 or less), up to a certain level.But there is a risk that making public funding proportional to small donations will accelerate polarization and extremism even further. Research suggests small donors are more ideologically extreme than average citizens and donate to ideologically more extreme candidates. In his campaigns, Mr. Trump raised a higher percentage of his contributions from small donors than any major-party presidential nominee in history.Numerous studies have shown that in general, individual donors (large and small) are the most ideological source of money in politics. Traditional public financing is far more neutral in the types of candidates who benefit.In debating campaign-finance reform, we must focus not just on the values of participation or equality but also on the overall effects different approaches to reform are likely to have on political extremism or moderation.Jan. 6 provided a painful demonstration of the dangerous currents gathering in American political culture. Every proposed election reform must now be measured against this reality to make sure political reform furthers American democracy.Richard H. Pildes is a professor at New York University’s School of Law and an author of the casebook “The Law of Democracy: Legal Structure of the Political Process.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More

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      How Not to Be at the Mercy of a Trumpified G.O.P.

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      AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyHow Not to Be at the Mercy of a Trumpified G.O.P.Barack Obama asked Democrats to kill the filibuster and pass a voting rights bill because it was the right thing to do. There’s a stronger argument.Opinion ColumnistFeb. 23, 2021Credit…Elizabeth Bick for The New York TimesLast year, in his eulogy for Representative John Lewis, President Barack Obama urged Congress to pass a new voting rights act to continue the work of the lifelong civil rights activist.“If politicians want to honor John, and I’m so grateful for the legacy of work of all the Congressional leaders who are here, but there’s a better way than a statement calling him a hero,” Obama said. “You want to honor John? Let’s honor him by revitalizing the law that he was willing to die for.”Obama then called on federal lawmakers to lift as many barriers to voting as they could. “Once we pass the John Lewis Voting Rights Act, we should keep marching to make it even better,” he said, listing automatic voter registration, felon re-enfranchisement, a national voting holiday, D.C. statehood and curbs on partisan gerrymandering as reforms that would do justice to Lewis’s memory. “And if all this takes eliminating the filibuster,” Obama concluded, “then that’s what we should do.”Although he probably expected them to win in November, Obama said this not knowing whether Democrats would have a majority in the Senate come the start of the next Congress. Well, Democrats have that majority. And thanks in large part to the work of John Lewis and those who followed in his footsteps, it rests on two senators from Georgia, whose political futures rest in turn on whether every voter in the state has equal access to the ballot.The same is true in Arizona, Pennsylvania and Wisconsin, where slim margins made the difference between Democratic victory and Republican defeat in the last election, and where Republican legislative majorities are determined to keep Democrats as far from power as possible — and not to lose the next presidential election the way they lost the last one. To that end, they have introduced bills to restrict the vote, to make the race for the Electoral College — as well as any race for statewide office — as noncompetitive as possible, by taking as many Democratic voters off the board as they can.Obama asked Democrats to kill the filibuster and pass a voting rights bill because it was the right thing to do. But there’s a stronger argument: that if Democrats don’t do this, they’ll be at the mercy of a Trumpified Republican Party that has radicalized against democracy itself.Democrats have already written the kind of voting rights bill Obama spoke about. It’s the For the People Act, designated as H.R. 1 in the House and S. 1 in the Senate. If passed and signed into law, it would establish automatic, same-day and online voter registration, protect eligible voters from overly broad purges that remove them from the rolls, restore the Voting Rights Act with a new formula for federal preclearance (which would require select cities and localities to submit new voting rules to the Justice Department for clearance), re-enfranchise the formerly incarcerated, strengthen mail-in voting systems, institute nationwide early voting and increase criminal penalties for voter intimidation.House Democrats introduced H.R. 1 in 2019 at the start of the 116th Congress. Mitch McConnell, then the majority leader of the Senate, denounced the bill as a “naked attempt to change the rules of American politics to benefit one party” and told reporters it was dead on arrival. “This is a terrible proposal,” he said that March, “it will not get any floor time in the Senate.”McConnell no longer controls the floor, but with a de facto supermajority requirement in the Senate, the For the People Act is still dead on arrival. That is, unless Democrats kill the legislative filibuster and restore majority rule to the chamber. Right now, Senators Kyrsten Sinema of Arizona and Joe Manchin of West Virginia are the most vocal Democratic opponents of ending the filibuster. “I want to restore the 60-vote threshold for all elements of the Senate’s work,” Sinema said earlier this month, seemingly mistaking McConnell’s Obama-era innovation for an age-old tradition. Manchin has also been emphatic about keeping the supermajority requirement, telling Politico that he will “not vote in this Congress” to change the filibuster.Manchin, who has been winning elections in West Virginia for the last 20 years, is safe in his seat for as long as he wants it. Sinema, on the other hand, is much more vulnerable. Not the least because Arizona’s Republican state Legislature, to say nothing of its Republican Party, is all-in on “stop the steal” and Donald Trump’s war on mail-in voting. Arizona Republicans have already introduced bills to limit voter registration drives, require notarized signatures for mailed ballots and forbid voters from actually mailing-in completed ballots.Arizona Republicans are not alone. To date, according to the Brennan Center for Justice at N.Y.U.’s law school, Republicans in 33 states have introduced more than 165 bills to restrict voting, part of the national conservative backlash to the results of the 2020 presidential election. A bill in Georgia would put new restrictions on absentee and in-person early voting; four different bills in Pennsylvania would eliminate no-excuse absentee voting less than two years after Republican lawmakers voted it into law.Representative Steve Scalise of Louisiana, the No. 2 Republican in the House, captured the mood of the party when, on Sunday, he refused to say that the election wasn’t stolen from Trump. “Once the electors are counted, yes, he’s the legitimate president,” Scalise said in an interview with Jonathan Karl of ABC News, speaking of Joe Biden. “But if you’re going to ignore the fact that there were states that did not follow their own state legislatively set laws. That’s the issue at heart, that millions of people still are not happy with and don’t want to see happen again.”This is euphemism. There was no issue with the election. State legislatures passed laws, courts interpreted them, and officials put them into action. This was true in states Trump won, like Texas and North Carolina, as much as it was in states he lost. It almost goes without saying that the real issue, the reason Republicans are actually unhappy, is that Biden is president and Democrats control Congress.Devoted to Trump, and committed to his fictions about the election, Republicans are doing everything they can to keep voters from holding them and their leaders accountable. They will restrict the vote. They will continue to gerrymander themselves into near-permanent majorities. A Republican in Arizona has even proposed a legislative veto over the popular vote in presidential elections, under the dubious theory that state legislatures have unconditional, unlimited and unrestricted power to allocate electoral votes.The good news is that Democrats in Congress have it in their power to stop a lot of this nonsense, to pre-emptively weaken the rising tide of voter suppression. All it takes is a simple vote to make the Senate work according to majority rule, as the founding fathers intended.The alternative is to allow the supermajority requirement to stand, to allow endless stagnation, to abdicate the authority of Congress to govern the country and tackle its problems, to deny the party of collective action the ability to act for the public good and to give the party of plutocrats and demagogues free rein to twist the institutions of the American republic against its values.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More