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© Frank


From a Public Health Crisis to a Constitutional Crisis

by Dave Daley
October 7, 2020

This interview with David Daley, a senior fellow for FairVote and the author of Ratf**ked: The True Story Behind the Secret Plan to Steal America's Democracy and Unrigged: How Americans Are Battling Back to Save Democracy, was conducted and condensed by franknews. This article was originally published in May 2020

Dave Daley | I focus on democracy issues and voting rights. I was the editor-in-chief of Salon for many years, and in 2013, when I was running our politics coverage, it seemed the news out of the House of Representatives became more and more extreme by the day. We were covering 50 different repeal votes on Obamacare, a government shutdown, and an astounding conversation about guns after a massacre at an elementary school.

One day I asked a really simple question: why didn't Democrats take back the House in 2012, the same year Obama had been reelected and Democrats held onto the Senate? The Democrats had won 1.4 million more votes in 2012, but they failed to take back the House.

While doing research on this question, I came across something called REDMAP, The Redistricting Majority Project, in which Republicans take credit for using gerrymandering to give them control of state legislatures and Congress — even in a year that was not good for them at the ballot box. I had never heard of REDMAP, and I was running politics for a liberal publication under incredibly sharp people.  

I realized there was a story here about how gerrymandering was weaponized in a new way in 2010 and 2011. 

frank | There certainly was a story there. We're all familiar with what gerrymandering is now, and in a sense, it finally energized the left. Who do you think has the momentum in 2020?

I think regular citizens in gerrymandered states figured out what had happened sooner than Democratic politicians did. They started seeing extreme bills coming out of their state legislatures that they couldn’t do anything about. The transgender bathroom bill passed in North Carolina. Anti-labor bills started coming out of Michigan, a one-time labor hotspot. Anti-teacher and anti-university legislation started coming out of Wisconsin, a place that had once been so proud of its public schools. These legislatures became so unaccountable to their citizens largely because of gerrymandering. 

The momentum for reform has come from citizens understanding what needed to be fixed if they wanted to have accountable politicians. It's no coincidence that this movement begins in Michigan, a state in which Democratic State House candidates have won more votes in every election this decade, but Republicans maintain control. It's no coincidence that North Carolina has been such a hotbed of this movement, given that gerrymandered legislatures immediately went after voting rights — enacting surgically focused voter ID laws, eliminating days of early voting, closing precincts, and purging voter rolls in order to entrench their own power.

Citizens were forced into a war with their own representatives in order to ensure that they had a voice in state politics again. 

It’s exhausting. When democracy is working well, citizens shouldn’t be completely and constantly preoccupied with politics.  

You are exactly right. When our politics works well, citizens can trust that their representatives are actually doing that — representing them. 

With gerrymandering, you get politics that are pushed so far to the edge that regular people lose all influence. One of my favorite stories of this in my book comes from Idaho. I think the number of registered Democrats in Idaho is around 14%. You can count the number of Democrats in The Idaho State House of Representatives on two hands, and sometimes one. 

But, when the state legislature refused to take Obamacare money to cover healthcare for their citizens, 70,000 citizens in Idaho fell into a gap that made healthcare unaffordable. The simple truth of the matter is that in a state as rural as Idaho, without Medicaid, you can't do a good job providing healthcare to people. Reclaim Idaho built a coalition, in an extremely red state, that supports Medicaid expansion with more than 60% of the vote. This was not the work of Democrats, this was not even the work of Democrats and Independents coming together, it was the work of citizens coming together to say, this is the right thing to do, and our legislature isn't doing their job.

You wrote recently that we need to make sure this public health crisis doesn't also turn into a constitutional crisis. What needs to be done to ensure that we don’t reach that point in November? 

We need to take a really hard look at what happened in Wisconsin and do everything we can to ensure that doesn't happen nationwide in November.

What happened there ought to shake and terrify every American. Wisconsinites lined up in masks in long voting lines and were forced to vote in person by a legislature that refused to reschedule the election. Voters in Milwaukee were limited to 5 of the usual 180 voting precincts. We are already seeing reports that at least 19 people who either voted that day or were working the polls have caught the virus, and that number is certain to go up. Local election officials, overwhelmed and underfunded, had to mail out something in the ballpark of 1.2 million absentee ballots, five or six times more than they've seen in any election before. They did heroic work in getting most of those ballots out, but they were not set up to do that. The U.S. Supreme Court weighed in at the last minute on a 5 to 4, party-line vote, that refused to grant any additional time for absentee ballots to arrive in the mail. Days after the election, post offices across the state are reporting piles of undelivered absentee ballots.

That seems to be a situation we would want to avoid in the fall: Americans forced to vote in person in the middle of a virus, overwhelmed election officials trying to get an unprecedented number of absentee ballots out the door, an underfunded post office system having to deliver and return all of these ballots, only a fraction of available precincts actually open, and the U.S. Supreme Court issuing a party-line ruling on how people want to get to vote. 

If all that happens on the verge of the Presidential election, we will be in the throes of a constitutional crisis that will cast genuine doubt on the legitimacy of the results.

What's possible if we're triaging action between today and November to make sure all of the things you just outlined don't happen? 

Triage really is the keyword here. We have fewer than 200 days. The States that have instituted vote-by-mail have had years to refine it. We are going to have to learn what we can from their experience and do our best in the time that we have left to ensure that Americans can vote safely and securely. 

This has to start with funding the process adequately. The Brennan Center and nonpartisan reform groups have said this is going to cost anywhere between $2 to $4 billion. Congress has appropriated $400 million so far. That is not enough, and $2 to $4 billion spent on preserving democracy is a rounding error relative to other packages coming out of Congress right now. 

Spending money to safeguard our elections seems like an important investment that we should all be able to get behind.

Then, there is a lot of work to be done. Ballots have to be printed and translated, optical scanners have to be purchased so that states can actually read the results quickly, poll workers have to be trained, and voters, who are not used to voting-by-mail, have to be educated on the process. 

We also have to be thoughtful and considerate about making this process equitable. It will not be easy to vote-by-mail for everyone. The mail service is not as secure and reliable on Native American lands or in public housing projects, for example. Some in-person voting is going to have to be arranged and available, so how do we ensure that it is safe and secure? Are we making it easy for people to get ballots by sending them to everybody who was a registered voter? Or are we making them jump through additional hoops of applying for a ballot and then getting one back? Are we putting postage on those ballots for everybody so that we are not adding an additional poll tax? What are we doing to ensure that Americans can register to vote between now and the election? Can people register online? We have to be thinking about these factors in the days that we have available to us. It's doable, and it's very important, but we have to move quickly.

You talked about budgets tied up in Congress – but is this something states can pursue independently?

Yes, individual states could step up and fund this themselves, but individual states have got a lot that they're trying to step up and fund themselves right now. This is something that the federal government should be able to do. It is a critical part of one person, one vote. It shouldn't be easier to vote in New York than it is to vote in Georgia. If we are setting up an election system where there are going to be additional barriers in some states that you don't have in others, that is not equitable.

Right now there is no-excuse absentee ballot voting in two-thirds of our states, but in the other third, you need a specific excuse. A pandemic, as many local officials are making clear, doesn't count. It would be extraordinarily useful if Congress would pass a law that said in all 50 States, you can vote absentee without an excuse.

Is that constitutionally plausible?

It is absolutely constitutionally plausible, it just requires a statute. Whether it is politically possible is the question. 

Voting rights, quite unhelpfully, have become so partisan. The President talks about how vote-by-mail will give us levels of voting in this country that will never elect a Republican President again. A Congressman from Kentucky spoke about how vote-by-mail would upend the American way of life. Republican senators, in the middle of the last stimulus debate, claimed that they couldn't understand the connection between the virus and voting. I mean, if you can't understand the connection please take a look at those pictures coming out of Wisconsin. That ought to make it really, really clear.

It makes me wonder what the future of the conservative party in the United States is. If one person, one vote is not only detrimental to them but possibly the end of them, what does that suggest?

I think you have your finger on perhaps the most important question of our time. This has been a long term effort by a Republican party that sees itself on the wrong side of demographic trends, and is trying to maintain power with a shrinking base. When you make that decision, you have to rely on gerrymandering, voter ID laws, purging voter rolls, and closing precincts. And here we are. 

We are in the middle of a pandemic, unable to have a national conversation about how we safeguard our democracy. It's enormously dangerous.

I can't understand the long-term benefit of turning your party into this. I guess the answer is just about power, but that seems too simplistic somehow when you watch the abandonment of the principles of a party. 

 You abandon your principles slowly and then all at once. 

I think that's what happened. Conservatives made a deal with the side of the party that was racist, nationalist, and had its roots in John Birch America or Jim Crow America. These were factions that they thought were a small piece of a party. They thought they were stored safely under the bed. But decisions were made that unlocked that box under the bed and put it at the forefront of the party.

The first decision was when Republicans responded to their 2008 loss by deciding that their best attempt at a path back to power was through redistricting rather than responding to the changing demographics of a nation. 2008 was a historic Democratic sweep, but 2010 was a census year, a redistricting year. The folks who executed REDMAP understood the opportunity that it posed for Republicans. They redrew these states to give themselves these incredible majorities with a minority of the vote, by doing so, created districts that push your party to the extreme.

My favorite example of this is Mark Meadows in North Carolina. Mark Meadows’ district in Asheville was represented first by a Republican and then by a conservative Democrat, Heath Shuler, throughout the 2000s. When Republicans redrew the map in 2011, Shuler took one look at the new map and decided he could not win. Republicans had cracked Asheville in half — divided the one Democratic area down the middle and ensured a conservative Republican would win. Who goes on to win that seat? Mark Meadows, a sandwich shop owner who runs as a birther. It is that district line that puts Mark Meadows in power. It's Mark Meadows who comes to Washington and files the parliamentary motion that essentially forced John Boehner to resign. It's Meadows who forced the 2013 government shutdown. It's Meadows who's now Chief of Staff to Donald Trump. He doesn't exist if not for gerrymandering. Mark Meadows is the Frankenstein that is unleashed by what the Republicans did.

Betting on the extreme right-wing, instead of adapting to new and inevitable demographics, is again, a very interesting choice. And again, not one I really understand. What is a Republican in 2030?

I don’t think they are looking to 2030. The Republican strategists who came up with REDMAP in 2009 believed this would buy them some time while they began to figure out how to appeal to younger voters and minority voters. Instead, the gerrymandered districts produced political figures who were so far right that the Republican Party became forever unpalatable to minorities and young voters.

Republicans are now forced, even more so, to rely on suppressive tactics to keep those people from the polls.

And everybody else fell in line with the new extreme figures. And if you didn't fall in line, like Bob Corker and Jeff Flake, you were out. All who remain, like Lindsey Graham, are unrecognizable from who they were in 2015 and 2016.

You spoke in your book about Pelosi putting forth the For the People Act, an act full of electoral reforms that would end gerrymandering and restore the Voting Rights Act, among other things. It met its end in the Senate. Do you think there will be a continued effort from the Democrats to sustain voting progress?

The reforms proposed in the For the People Act are tremendous and far-reaching. If Democrats take back Washington in 2021 we will see if they are sincere in their efforts, or if the reforms were proposed performatively knowing they would die on Mitch McConnell's desk. I'm not at all certain it will remain a continued effort. 

I think that the Democratic leadership in both the House and Senate has been extraordinarily weak on winning the kinds of funding that we will need to safeguard elections in the fall. They expanded the PPP earlier and reached another deal with Mitch McConnell, and yet once again, there was nothing for vote-by-mail. That was shocking to me. I don't know when they think they will have more leverage and I don't know why they're not willing to use the leverage that they have on behalf of a fair election.

The leadership of the Democratic Party appears to have a weak understanding of the importance of fair elections. They need to take a good hard look at what happened in Wisconsin and remind themselves of what might happen if they don't get their act in order. 

Are you hopeful?

There's a lot to be optimistic about when you look at how many citizens' movements there are around the country and how they have managed to win by uniting nonpartisan coalitions — left, right, center, white, black, young, old. These coalitions are built by uniting people around the common American ideal of fair elections. I think we can take real heart in that success, but the political class is hanging on.

These fights are as old as the nation itself and they're not going to end with any one election.

The fight for voting rights didn't end with the passage of the 13th, 14th, and 15th amendments, it didn't end with the passage of the Voting Rights Act. These are fights that all Americans need to be engaged in. I think the lesson of the last couple of years is that these battles have fully begun — and that we are coming.