Category: Ranked Choice/Instant Runoff Voting

“The Peril and Promise of Redistricting Reform in H.R. 1”

Very excited to have a piece up on the Harvard Law Review Blog diving into H.R. 1’s redistricting reforms. The post examines some surprising shortcomings in the bill and offers suggestions on how H.R. 1’s redistricting provisions could be strengthened to make sure it truly works #ForThePeople.

Below is a snippet from the introduction. To read the whole post, head on over to the Harvard Law Review Blog!

In 2019, House Democrats unveiled a sweeping electoral reform package, designated “H.R. 1” as a symbolic gesture of the bill’s importance. . . . Fast-forward to 2021 and H.R. 1 now stands a chance of becoming law. Unfortunately, one part of the package may be turn out to be more symbolic now than it was in 2019: redistricting reform.

H.R. 1’s redistricting reforms revolve around the creation of independent commissions [with] a decennial timeline . . . pegged to years “ending in numeral zero.”  In 2019, the effective date of the reform applied “with respect to redistricting carried out pursuant to the decennial census conducted during 2020 or any succeeding decennial census.” . . . [T]he most recently introduced version of H.R. 1 pushes off [that] effective date . . . until 2030

This puts redistricting reform in great peril.  Republicans won big in state legislatures in the 2020 elections, which means they will be drawing most congressional districts for the decade to come.  And with Rucho v. Common Cause clearing the way for even more radical partisan gerrymandering than the 2010 round, there’s a good chance that H.R. 1’s proposed independent commissions never see the light of day. . . . 

All of this is easily avoidable.  Democrats should take the redistricting criteria that the commissions are supposed to follow, see § 2413(a), move them up into Part I of Subtitle E, convert them into freestanding requirements for all congressional districts regardless of the entity doing the drawing, and clarify that those requirements are effective upon enactment. 

H.R. 1: First Item on the Agenda? Improving the 2020 Election.

As election returns rolled in last week, citizens in Democratic and Republican strongholds alike voted overwhelmingly to take power back into their own hands.  From voting-rights restoration for 1.4 million returning citizens in Florida and Automatic Voter Registration (AVR) in Nevada to redistricting reform in Michigan, Missouri, Colorado, and Utah, the night was full of impressive democracy-enhancing victories.

These gains were only possible thanks to incredible dedication and activism between the 2016 and 2018 elections.  And, as the dust settles on 2018, it’s time to turn to 2020.  For states with popular initiatives, that means expanding AVR, implementing early voting and no-excuse absentee voting, or following Maine’s lead and adopting ranked-choice voting.

Yet, improving our elections should not be the work of the voters alone.  As more and more elected officials owe their office to such reforms, they too can help unrig the systems that keep our politics unaccountable.  And, for candidates who can only win in wave years, the first order of business must be tearing down the barriers that make our elections unresponsive in all other years.  Newly elected leaders have an opportunity to make voting more accessible and representative before 2020 arrives—they must not pass it up.

State Action

For newly elected governors, state senators, and state representatives, this means making registration easier (through AVR, online registration, and/or same-day registration), making voting more convenient (through expanding early voting, absentee/mail-in voting, and/or creating state holidays for voting), making voting more representative (through ranked-choice voting, redistricting reform, and/or fair representation voting), and expanding the franchise.

These kinds of structural changes are less likely to roll back after the next election because they alter the power (and the pool) of the voters making the decisions, thereby changing the incentives of those running and those elected.  Putting these reforms at the top of the agenda—and insisting on them before moving forward—can also impact how newly elected officials of all stripes approach the rest of their legislative term.  If state officials know that their work will be judged by a broader and more representative electorate in two years’ time, they might be more responsive in the interim.

In states where these reforms are already in place due to citizen initiative, legislators should take steps to enhance and protect those reforms by reenactment and expansion.  This explicit legislative action may help defend them against challenge if the Supreme Court decides to revisit its 2015 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission.  As Rick Hasen points out in a recent Harvard Law Review Blog post, Chief Justice Roberts “wrote a blistering dissent for the four conservative Justices arguing that only state legislatures can set the rules” for congressional elections under Article I of the U.S. Constitution.  With Kennedy replaced by Kavanaugh, it may be that the Court’s fickle feelings about stare decisis are now all that stand in the way of a massive rollback in recent initiative-driven gains.  By shoring up these reforms through legislative action, state representatives can help lock in these democratic advances, protect them against judicial challenge, and position themselves as defenders of the popular will ahead of their next election.

There may also be room for compromise on redistricting reform in a number of states with split governments.  Maryland and Massachusetts, for example, continue to have Democratic legislatures and Republican governors, whereas Virginia and Wisconsin have Republican legislatures and Democratic governors.[1]  With a new round of redistricting approaching (and roughly equal numbers of congressional representatives in each state), perhaps there’s more of an incentive now to “make a disarmament deal” than in prior years, with each state conditioning redistricting reform on a sister state enacting the same.

Each of these steps would improve the state of our democracy significantly and set the stage for elections in 2020 based on a much more representative electorate.

Federal Action

With a Democratic House and a Republican Senate, the odds of federal action may seem slim.  Nonetheless, Election Night revealed that democratic reforms remain popular across party lines.  Proposals for improving our elections should be at the front of the legislative calendar and should remain a top priority throughout the coming legislative session.  These include:

Automatic National Voter Registration: Those who are eligible to vote should be able to vote, and those who are ineligible to vote should be kept off the registration rolls—these basic principles have widespread public support. A national system that automatically registers voters for federal elections as soon as they become eligible and that assigns a national identification number to each voter would address both of these concerns.  The United States has terrible turnout numbers, but much of this may be attributable to the registration barrier: our turnout of registered voters appears to be among the best in the world.

Voting Rights Act Restoration: If it feels like voting has become far more difficult over the past few years, you’re not wrong. Before 2013, states and localities with a history of discriminatory voting practices could not alter their voting rules without getting prior permission (or “preclearance”) from a federal court or from the Department of Justice.  In 2013, the Supreme Court held that the list of jurisdictions subject to preclearance was outdated and struck this part of the Voting Rights Act (VRA) down.  Numerous new voting restrictions soon followed.  Congress used to reauthorize the VRA with broad bipartisan support, and it should do so again this session by enacting the Voting Rights Advancement Act (legislation that requires preclearance for any state with a record of voting-rights violations in the last 25 years).

End Gerrymandering with the Fair Representation Act: Independent redistricting commissions enjoy widespread support across the partisan divide and should be required for the creation of all congressional districts.  But Congress should not stop there—it should pass the Fair Representation Act (FRA).  The FRA uses ranked-choice voting and multi-member districts to ensure that every vote matters.  Independent commissions can help make lines fairer, but single-member districts mean even the “fairest” lines will still write off those voters in the minority of each district.  In our increasingly polarized politics, we could stand to have a House of Representatives with Massachusetts Republicans, Arkansas Democrats, and perhaps even some third-party Members of Congress—voices that our current system shuts out.

Election Administration: No one should have to wait hours to vote, face malfunctioning equipment, or fear that vote tallies have been manipulated. Back in 2014, a bipartisan commission proposed a number of reforms to improve polling place resource allocation, expand opportunities to vote before election day, and provide regular audits of voting equipment.  These suggestions are still relevant today.  Congress should provide funding to update and improve our electoral machinery and processes.

With forceful action at the start of the next session, Congress could put our democracy on a safer and more sustainable path, leveraging the progress of the last step forward in order to make the next step possible.  But these reforms must be first on the legislative agenda if they’re to make any difference in time for the 2020 elections.  Democrats and Republicans alike should take a lesson from the voters: some things are beyond the partisan divide.  Free and fair elections ought to be one of them.


[1] Maryland and Massachusetts may be less inclined to engage in this exchange given their Democratic supermajorities, but given the slightly higher number of Republican representatives at stake (and the recent federal court ruling against Maryland’s gerrymander) perhaps there is still incentive to make a trade.

“FairVote and Leading Maine Civic Groups File Briefs Defending Ranked Choice Voting”

The fight for Ranked Choice Voting (RCV) in Maine continues!  Proud to have worked with FairVote on this brief.

With all the recent news on redistricting (which will be addressed in a couple of forthcoming posts), it’s important not to overlook the significant headway that RCV is making across the nation.  As FairVote points out, “[t]here are now 18 states with bills advancing ranked choice voting.”  In fact, the Utah House just today voted 59-12 to pass a bipartisan bill that would require the use of ranked choice voting for nearly all Utah elections.

Want to know more about how Ranked Choice Voting can improve our elections?  Head on over to FairVote to find out… and then take action!

President Trump: Now What?

Election Day shook the nation to its core and left many across the political spectrum wondering exactly what happened and where to go from here. Although the despair on the political left has begun to give way to charges of renewed efforts and steely resolve, the refrain feels more like a reflex than a meaningful strategy. The response that next time people just need to organize better or work harder seems to ignore a central theme of Trump’s campaign, Bernie’s campaign, and the entire 2016 election: the establishment does not care about you.

Consider this quote from Trump’s campaign: “Tonight’s election demonstrates what most Americans knew since the beginning of the primaries: the political elite of both parties, the economists, and the media are completely out of touch with the American electorate.” Oh wait, that was the press release from “Our Revolution,” the legacy organization of the Sanders campaign. Rage at an entrenched “governing class” was a touchstone for this election, regardless of party preference.

“Draining the Swamp”

Everyone should stand ready to fight the good fight and work hard to effect change in our democracy, but many rightly feel that it shouldn’t be this damn hard for elected officials to be accountable to their constituents and represent their interests. Yes, we must continue to organize and listen and learn and fight—that is the essence of self-government—but if the fight is always conducted within the same system with the same flaws, we should not be surprised when the grip of futility tightens and the urge to hand power to “strong” leaders takes hold. We should all take notice when a majority of Americans in several states respond that they find Trump unqualified—even scary—and vote for him anyway in order to “shake things up” in Washington. When voters are covering their eyes with one hand and tossing the dice with the other, we’ve got a serious problem.

In other words, if we’re asking where to go from here, we might need to get back to basics and focus on how our democracy works. Despite the popular refrain to “throw the bums out,” the problem is not corrupt people in Washington – the problem is a corrupt system that entrenches representatives, incentivizes conflict and stalemate, and rewards responsiveness to fundraisers, lobbyists, and existing power structures rather than accountability to regular constituents. (Why else would 97% of incumbents who chose to run again be reelected in an “anti-establishment” year?) Sanders and Trump alike decried the corruption of our political system and the influence of money in politics. Large numbers of voters cast third-party tickets despite the almost-inevitable consequences of doing so. A number of state and local initiatives echoed this broader desire to upend the existing system: Every Voice points out that “[a]cross the country, in red states and blue states, voters supported measures to fight big money and strengthen our democracy.” In Speaker Paul Ryan’s home of Rock County, Wisconsin, 86% of voters approved an anti-Citizens United resolution, and in Maine, voters approved ranked-choice voting. These aren’t normal party-line positions.

We should champion these changes. Voters who increasingly yearn for a viable third party, for example, need to step up their efforts between elections rather than during them. At the time of the election, the choice is either to accept political reality (and cast a tactical ballot for a candidate you don’t believe in) or to reject political reality (and waste a futile ballot on a candidate who can’t win). Between elections, however, there’s an opportunity to change political reality (and challenge the single-member districting and plurality voting laws that stack the deck against third-party candidates in the first place). Ranked choice voting, for example, could have given all voters the chance to vote for their first choice of president without sacrificing their ability to influence the race between their second and third choices for president. Such changes can play a huge role in congressional representation as well. FairVote, for example, recommends a “fair representation voting” approach which mixes elements of proportional representation with our country’s history of candidate-based elections. Such reforms could have a seismic impact on the viability of third parties and the ability of the legislature to more closely reflect the electorate’s diverse makeup and beliefs.

Clinton and Trump supporters alike should also press Trump to keep these fundamentals in mind when he inevitably appoints Justices to the Supreme Court. If Trump looks to the Republican establishment to bless his selections, the anti-establishment left and right should raise hell. After all, the Supreme Court itself bears much of the blame for the current state of our politics. The Supreme Court has fueled the unbridled influence of money in politics through its campaign finance cases over the past forty years and has permitted the entrenchment of partisan gerrymandering over the past thirty years. All of this has carried legislators’ interests farther and farther away from the voters they’re supposed to represent. And when you slowly erode the peoples’ ability to influence the legislative branch, you should not be surprised when they elect an executive who promises to plow through legal niceties.

Hard Facts and Hard Realities

This rage at the “elites” has also upended the nature of our political debate. Despite all the discussions over whether we’ve entered a “post-factual” era of biased information—and perhaps we have—we’ve failed to acknowledge the legitimacy of our fellow citizens’ lived experiences. The academic consensus and macroeconomic data may suggest that free trade enhances net welfare, but that fact is hardly relevant to the day-to-day reality of someone who lost their job. A 5% cheaper set of dinner plates doesn’t feel like progress when you can’t buy food. A Congressperson’s well-researched and polished set of talking points don’t really cut it when you haven’t seen him or her show up in the community and ask how you’re doing. These realities may not negate the facts, but they should inform the debate. This isn’t a liberal problem or a conservative problem; it’s a humility problem. Women and communities of color have their lived experiences discounted and their realities ignored on a daily basis. The fundamental need to be heard and respected cannot be debated into submission. So if the main point of this year’s election was to throw one perfectly-normal-sized middle finger at the system, then the opposition should not be surprised when they’re asked to take their manila folder of policy positions with them on the way out. That’s not to dismiss the importance of facts and rational debate in a democracy; it’s just a warning not to dismiss the frustration of an electorate that has reached a point where they’re ready to burn the house down in order to make a fresh start. At that point, arguments about the property-insurance implications are too little too late.

The Whitelash

Of course, the people who are included in this “fresh start” matter. Racism, sexism, xenophobia, anti-Semitism, anti-Islamism, and hate animated a core part of Trump’s base. One poll found that a third of Trump’s primary supporters believed in banning gays and lesbians from the country and twenty percent said Lincoln shouldn’t have freed the slaves. Re-read that.  Reflect on it. To try and argue that these supporters were conveying any kind of legitimate political or economic grievance is insulting, ignorant, and the pinnacle of privilege.

That is not to say all Trump voters cast a ballot for him for the purpose of expressing such a message. Many Trump supporters have disclaimed the words and actions of this element in their midst, and I do not doubt the sincerity of their beliefs. It’s fair, however, to doubt the sincerity of their commitment. A large contingent of voters who do not “agree” with such hateful views can nonetheless attend a rally along with a man wearing a swastika because doing so poses no threat to them. The same cannot be said of everyone that man will encounter once the stadium empties. Now that Trump is our president-elect, those who voted for him but claim to care about racial, sexual, and religious equality face a key test: what will you actually do about it? It is not enough to disagree with the violence and vitriol if you elect the candidate who condones it and normalizes it. (It’s not enough even if you didn’t vote for that candidate.) By failing to condemn and reject these followers, Trump has emboldened our nation’s worst impulses and put people of color, women, and religious minorities in even greater danger than before. This isn’t liberal hyperventilation or imagination. This is real. Pushing back against this direction over the next four years will take far more than words and will require constant vigilance, activism, and litigation. We will need to look out for one another, protect one another, respect one another, and fight against this fresh surge in intersectional hatred.

Next Steps

So yes, Democrats and progressives, begin to prepare for the next big battle. Prepare to organize. Prepare to mobilize. But if you want your organizing and mobilizing and political engagement to create meaningful and durable changes in the future, think about ways to change the underlying systems that are compounding this nationwide frustration and think about ways to start bringing swing voters back into the fold. I recognize this kind of outreach seems impossible—even unacceptable—right now. But this isn’t a call to sing Kumbaya or suddenly warm to Trump. I’m terrified of the incoming Administration, and I don’t plan on hiding it. This is a man who thought Tiananmen Square was a “show of strength,” praises the “leadership” of dictators around the world, proudly proclaims that he seeks revenge against his adversaries, sues and slanders his critics into silence, and now has the nation’s military, investigative, legal, and intelligence arms at his disposal. And his various advisors don’t sound any better. In my view, Trump is an erratic, race-baiting, unqualified, and dangerously thin-skinned misogynist authoritarian. (This blog is nonpartisan, not opinion-less.) But, as it turns out, there may be a sizable segment of Trump voters who share many of these same fears and voted for him nonetheless.

You may be tempted to say “to hell with those people.” Breakdowns of the Trump electorate show that it skews much older and whiter, and many Clinton supporters would probably be more willing to simply bide their time and wait for demographic shifts to change the balance of power than engage with a Trump voter. That would be a mistake. In the immediate term, those whose lives and livelihoods are threatened by the nationwide uptick in overtly racist and hateful acts don’t have the luxury of generational patience: priority number one must be getting swing Trump voters to step away from the campaign and fight against these parts of the Trump coalition rather than being defensive about their presence in the Trump coalition. Otherwise, the outrage will only galvanize and unify Trump voters, pushing moderate voters in the coalition closer and closer to the newly emerging (or, rather, newly visible) alt-right and cementing the dangerous dynamics at play in this election for generations to come. In the intermediate term, progressives and principled conservatives alike must work to bring enough Trump voters back into the fold to put effective checks in place in the House and Senate in the midterm elections just two years out in order to hold the Administration accountable. And finally, in the long term, we must recognize that an inward turn towards “my” group and “my” people is the beating heart of tribalism. The inward turn of Trump supporters cannot be defeated by a stronger inward turn on the part of his detractors. Such a culture doesn’t out-survive an enemy; it only makes new ones.

Most Americans have had enough of feeling unheard and unseen by our government. For many that includes being fed-up with the very currents that swept Donald Trump to the presidency, but we are all fed up nonetheless. Maybe being “fed up”—and wanting “big changes”—is too small a point of common ground to build from. Maybe our reasons for being “fed up” are too far apart to reconcile in any way. And, if so, maybe we’re doomed from here on out to watch our gladiators do battle every four years as we grow more terrified in our losses, bloodthirsty in our victories, and primal and vitriolic in our culture and dialogue.

But if there’s any hope at all to be found in our future—our common American destiny—then we ignore this last bit of shared purpose at our peril. In his acceptance speech, Donald Trump “reached out” to those who had not chosen to support him to ask for their guidance and their help to unify the country. He would be well served to start here and try to respect the few common wishes of his supporters and his detractors. If we’re going to burn the house down, then it’s time we all start working together on a blueprint for the replacement. And fast.

Update: Before I finished working on this post, word began to trickle in that Trump’s transition team is “drawing squarely from the ‘swamp’ he has pledged to drain.” (Or, as Stephen Colbert has said, the cabinet members are “exactly what I’d expect to find at the bottom of a drained swamp.”) There could hardly be a better example of the self-perpetuating tendencies of existing power structures.  This is not a promising start for the “anti-establishment” vote. It’s time to organize. All of us.