I am a Democrat and a strong admirer and supporter of President Biden. I think his administration and the Democratic leadership in Congress have achieved some striking successes so far. But my deeper loyalty, as a citizen and scholar, is to the constitutional system that has made America a great national experiment for almost 250 years.
So count me disappointed by the president’s much-touted address on voting rights dated July 13, 2021. The speech was long on ranting rhetoric — “Big Lie!” “Have you no shame?” — but woefully short on persuasive outreach to the many Americans who don’t already share the urgent concerns of many Democrats (and thoughtful Republicans) about voting rights, gerrymandering, and election integrity.
Trumpist Republican denialism about the 2020 election is of course a “Big Lie” that must be steadfastly refuted. But the president could have calmly and logically tried to explain why — as did my JURIST essay titled “Republicans, the Rule of Law, and the Fate of American Democracy” dated November 29, 2020 — noting, for example, that the very same ballots that elected him (by much narrower margins than polls predicted in key swing states) gave Republicans surprising victories in many congressional and state-level races. I appreciate the president’s passion, but what happened to the mild-mannered consensus-builder?
More to the point, time is running frighteningly short before the 2022 midterm election season to take any realistic action to avert the threats posed by Trumpist extremism. Those are, as my November 29 essay explained, extinction-level threats to the very foundations of our democracy. And if we fail to take action very soon, the midterm elections themselves will almost certainly close the window of opportunity to do so.
Yet President Biden’s July 13 speech offered nothing new — no creative ideas at all — to actually move the ball forward and accomplish anything on this crucial issue. He left progressive activists seething with frustration by ignoring the elephant in the room blocking any frontal attack on the problem — the Senate’s Fake Filibuster rule. Yet he also failed to reach out to Republicans — or moderate defenders of the filibuster like Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) — by suggesting any minimal bipartisan options to address the most critical threats.
It pains me to say it, but this is a failure of both presidential leadership and political imagination. The Democratic congressional leadership has also failed badly, so far, in this regard. And the stakes could not be higher.
It has been a month since the “For the People Act” (FTPA) was killed dead as a doornail in the Senate. In a New York Times essay dated June 23, 2021, Nate Cohn aptly described that “progressive wish list” of voting rights measures as “destined to fail,” a “flawed bill … full of hot-button measures — from public financing of elections to national mail voting — that were only tangentially related to safeguarding democracy.”
Ironically, the FTPA (like Biden’s big speech) offered too little even as it aimed ambitiously high. The FTPA failed to include any adequate or timely response to some of the worst threats we now face. Cohn pointed to the risk of “election subversion, where partisan election officials might use their powers to overturn electoral outcomes.”
I made similar points in my JURIST essay titled “Defend Democracy Before It’s Too Late: A One-Page Bill Would Do It” dated June 26, 2021, noting that the FTPA “would fail to remedy many disturbing [recent] changes in state laws,” including “new laws threatening harsh penalties for election workers and undermining election administration.” I also noted the “fact shockingly ignored in most news coverage” of the FTPA (including, sad to say, in Cohn’s otherwise excellent article) — that its “key provisions on gerrymandering would not even take effect until … after the 2030 census.” In a May 9 essay for Maryland Matters, Howard Gorrell, a moderate Maryland Republican, was already urging his state’s Democratic senators to focus more narrowly on stopping gerrymandering.
My June 26 essay pointed out that Congress has undisputed power under the Constitution to regulate federal elections and stop the continued gerrymandering of the U.S. House of Representatives. I proposed a simple one-page bill that would wipe out all recent (and block any new) state laws affecting federal elections unless enacted with bipartisan support and would instantly and permanently stop partisan gerrymandering of Congress. The need for this bill is more apparent than ever in light of the Supreme Court’s July 1, 2021 decision in the Arizona Brnovich case, which makes clear that the Court will not use the Voting Rights Act currently in force to strike down many if any of the new restrictive state laws on voting.
Why are Democrats in Congress not actively exploring and promoting such options? What more incentive do they need? If saving our republic is not enough, how about the fact that my bill offers their only plausible hope to escape political annihilation in the House in 2022? The huge Republican advantage in state legislatures will otherwise give that party free rein to gerrymander most House seats. One would think that might, at the very least, get the attention of House Speaker Nancy Pelosi (D-CA).
My proposed “DEFEND” Democracy Act is meticulously nonpartisan. It would certainly not guarantee Democratic success in 2022. But it would allow both parties an equally fair shot to make their case to American voters. The alternative, in the House, may well be minority rule by Trumpian Republicans for the next decade at least (already a fearful risk in the post-2022 Senate). That would destroy any chance the Biden administration might have for legislative achievements leading up to the 2024 presidential election — quite likely destroying Democratic hopes to win that election too, and perhaps any free and fair chance to do so.
The Biden administration, and Democrats in Congress, have now wasted months of precious time on maximalist political posturing over voting rights — without getting any closer to effective action against the extinction-level threats to American democracy that we face. Despite all the hand-wringing, as progressive activists have lamented, it hasn’t really been made an urgent priority.
Most maddening of all, we’ve seen this movie before. In 2009–10, Democrats also controlled both Houses of Congress (by much bigger margins) under a new Democratic president. Democrats actually enjoyed a filibuster-proof 60-vote majority in the Senate from July 2009 (when Sen. Al Franken, D-MN, was sworn in) to February 2010 (when Sen. Scott Brown, R-MA, took the seat of the deceased Democratic lion, Sen. Ted Kennedy).
Yet President Obama and the Democrats then running Congress (just as today, Speaker Pelosi and Senate Majority Leader Chuck Schumer, D-NY) failed to take the opportunity to end gerrymandering (federal, at least) once and for all. As Gorrell noted in his May 9 essay, Rep. Zoe Lofgren (D-CA) introduced a bill in that 2009–10 Congress to stop gerrymandering, as she has since 2005. In 2021 her bill was folded into the doomed FTPA. During the eight previous Congresses in a row, it died in committee and gained relatively few co-sponsors until after President Trump’s election in 2016.
Democrats blithely assumed they would have the upper hand in redistricting after the 2010 census and midterm elections. My party’s leaders stupidly and selfishly assumed they might benefit from continued gerrymandering, and thus chose not to make a priority of ending it. Instead, Republicans won landslide victories in 2010 and gerrymandered themselves into a stranglehold on the House (despite actually losing the popular House vote in 2012), until the anti-Trump wave of 2018. The narrow Democratic retention of the House in 2020 (when much of their 2018 gains evaporated) reflects — to this very day — the decade-long influence of that Republican gerrymandering in 2011.
During the lame-duck session in late 2010, Democrats still held huge majorities (59–41 in the Senate) and knew perfectly well what the Republican 2010 midterm victories portended. I realize it was a busy session with other important last-minute priorities. Yet Democrats failed even to consider, much less try to pass, a simple bill like I’m now proposing (with what could have been an extremely limited, one-time-only bypass of the filibuster) — that could have permanently ended federal gerrymandering and forestalled what predictably became almost a full decade of Republican dominance of Congress.
The result was to severely undermine the remaining three-fourths of Obama’s presidency. President (then Vice President) Biden was a front-row witness to all of this. Please, Mr. President — and Speaker Pelosi, Leader Schumer, Senator Manchin, Senator Sinema, all other Democrats in Congress, and all thoughtful Republicans who care about stopping gerrymandering and preserving the integrity of our elections — do not surrender once again to politics as usual. Do not again sacrifice Congress on the altar of partisan gerrymandering — and now, quite possibly, the future of our constitutional democracy itself.
Every passing day marks inexorable shrinkage in the time remaining on Congress’s legislative calendar. New district maps must be drawn well before the end of this year to avoid disrupting campaigns and primary elections. States need to know what rules will govern federal elections. Every day the Democratic Congress gets closer to marching off this cliff and again committing political suicide.
In just a few weeks, the Census Bureau will provide the detailed data allowing Republican state legislators to start gerrymandering their way to the dominance of Congress in 2022 and probably (at least) until 2032 — unless today’s Democratic Congress (hopefully with the support of some thoughtful Republicans, but if necessary without) chooses to exercise its undisputed power to stop them.
For American democracy, time is running out.
Bryan H. Wildenthal, an expert on constitutional history, is Professor Emeritus at Thomas Jefferson School of Law (San Diego), recently taught as a Visiting Professor in Spring 2021 at the University of San Diego School of Law, and is an attorney admitted to the Bar of the U.S. Supreme Court. Most of his scholarly works are freely available here.
Suggested Citation: Bryan H. Wildenthal, Will Democrats Commit Political Suicide — Again?, JURIST – Academic Commentary, July 23, 2021, https://www.jurist.org/commentary/2021/07/bryan-wildenthal-political-suicide-democrats/.
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