How steep is the Democrats’ path to regaining political power this fall? What can the 2016 election — and developments since — tell us about what it will take to win in 2018’s midterm elections?
There have been some positive signs in the news, even this week. Texas held the first congressional and state primary election of 2018. Democratic turnout was double from 2014, the last midterm year. Some progressives did well, but overall, hundreds of thousands more Republicans voted. Many were in races where the GOP drew district lines and took other steps to advantage their side.
In Washington State, legislation heading toward the governor’s desk will add it to a growing list of states that automatically register every eligible voter. That should be the case in every state, but it’s not. Voting in blue-state America can be a world apart from voting in red-state America. And even though it's easier today to register and vote, especially for young people, getting people to the polls in non-presidential races remains a very big challenge. Since the 1970s, midterm turnout keeps falling; a third of people who vote in presidential years simply skip the midterms.
How steep is the climb for Democrats in 2018 and 2020? Steeper than many people think, especially in the red-run states that determine who has a majority in the House of Representatives and the Electoral College. That’s because the process of voting, from the starting line of registration to the finish line of having one’s ballot counted, is marred by anti-democratic features. Some are hidden; others are visible. They affect who can vote, whether those votes count, and in close elections, who wins.
My new book, "Democracy Betrayed: How Superdelegates, Redistricting, Party Insiders, and the Electoral College Rigged the 2016 Election," describes how these factors came into play in 2016’s election — and why they still matter in 2018 and 2020.
The book has four parts: what the Democratic Party did to Bernie Sanders; what the Republicans have done to Democrats this decade; the flawed recounts of 2016; and everything that's unfolding under Trump.
I’m talking about the way the GOP games the rules of voting to betray the promise of our democracy: one person, one vote; and fair counts, in which the winners are declared and the losers go back to try again. If you’re reading this, chances are you receive daily emails from political parties or organizations begging for money, for whatever political crisis needs attention, whether causes or candidates. What none of these emails mention are their chances of winning. Concretely, how big are the barriers? What matters most? What does it really take to win?
What’s new in 2018 is that we can name, with precision, the obstacles to free and fair elections. We can say how much of an advantage one side has — or doesn’t have — to win. We can say the percentage of that party’s voters needed to turn out and cast ballots that will count. We can say what the impact of laws over-policing the process are — how much they discourage participation or undermine turnout. We can say which new partisan proposals under Trump would have the biggest negative impacts. We can also say what Russia did and didn’t do in 2016, and what the biggest threats are in 2018 and 2020.
Concretely, the Republicans have a 10 point or more structural advantage in the most politically contested states. That’s 10 percent more votes that are likely to be cast and counted in specific races for Congress and state legislature. This didn’t come out of nowhere. The GOP built it while the Democrats were asleep in 2011. Then the Democrats were out of power and couldn’t stop the GOP. If you want to know how big the blue wave has to be to take back the House, this is it.
Democrats must have more than 10 percent of their reliable voters turn out in November — 10 percent more of their base than reliable Republican voters — to stand a chance of winning back state legislatures and the U.S. House. They actually need more than that among their party and its allies, independents say, to get a winning majority of votes when the ballots are counted. That is because the voting process can be filled with errors and mistakes that disqualify ballots. They need a turnout wave this big because the boundaries creating the districts they’re voting in do not mirror their state’s overall political divisions.
Let me break this down. It starts with what’s been in the news lately, but wasn’t in 2010 and 2011 — gerrymandering. That’s the once a decade process where legislatures, or in some states like California, commissions, redraw political boundaries for anything that’s not a statewide race. The formal term is redistricting. It can be fair or it can be very unfair. It can be a reflection of the state’s political profile, or it can be a one-sided extreme power grab.
Gerrymandering has been in the news a lot; most recently in Pennsylvania, over its congressional maps. Why? After Obama and the Democrats won a landslide in 2008, a few smart Republican political operatives saw a way back into power. Gerrymandering gave them control of Congress this decade, and it gave them all those red-state majorities that have sued to block Obamacare, ignore climate change, attack abortion and LGBT rights, and stop gun controls.
What did the GOP do? In 2009, Republicans realized that if they won enough state legislative races and governor races in 2010, they’d monopolize redrawing their political maps. So they ran unprecedented nasty campaigns in 16 states that accounted for 190 House seats. Recall that 218 House seats is a majority. It worked and they won. In 2011, they redrew boundaries for their state legislatures and House districts with a clear goal: create unassailable Republican supermajority delegations. How? They segregated voters. They knew every voter’s political history. It’s not a secret. They cut and pasted and deleted and added neighborhoods. That’s gerrymandering: segregating voters. You’ve seen all those strange maps, like jigsaw puzzles, not county lines. The Democratic epicenters were cracked apart into multiple districts, or overly packed, to take away the competition from the GOP.
States like Pennsylvania, in which Trump beat Clinton by 50,000 or so votes, elected 13 GOP congressmen and five Democrats in 2016. It’s been that way for this decade. This is called extreme redistricting, or gerrymandering. It went before the state Supreme Court in Pennsylvania. Amazingly, unlike any other state, a majority on that state’s Supreme Court cited their state constitution, not the U.S. Constitution, and ordered new and fairer maps to be drawn before 2018’s spring primaries began. The GOP has been losing this fight in court, where they are now calling for state Supreme Court judges to be impeached. The judges' offense? Making the state’s congressional races more competitive.
Gerrymandering is when political parties choose who votes in elections before the candidates are even known. Democrats have done this in some states, like Maryland and Illinois. But nothing they did was on the scale of what the GOP did in 2011. Gerrymandering gives the GOP a 6- to 8-point lead in turnout from their reliable voters — reliable meaning those voters will turn out in bad years — above reliable Democratic voters. That figure comes from U.S. Supreme Court cases, academics, authors and statisticians. Which states? Wisconsin, Michigan, Indiana, Ohio, Virginia, North Carolina, South Carolina, Georgia, Florida, Texas, and until just recently, Pennsylvania.
This story doesn’t end with gerrymandering. Once the GOP redrew districts in 2011, they had massive victories in statehouses and in the U.S. House in 2012. That was a year when Obama was re-elected. Think about that: a Democratic president won the national popular vote with about 5 million more votes than Mitt Romney, yet Republicans emerged with more elected officials in most states and kept their House majority. At the state level, the GOP quickly passed a menu of laws designed to undermine Democratic constituencies.
The highest profile is stricter voter ID laws, which in the fall, can peel away another 2-3 percent of likely turnout. In primaries, it’s two to three times that, especially in non-white communities. How did they pass such a punitive law? They used the excuse of voter fraud, the threat of people voting more than once. In real life, this almost never happens. It’s less than a once-in-a-million vote event. But because there’s no authoritative national data tracking this, no federal agency tracking it, it’s an ambiguity the GOP cynically exploits. (It’s not the only legal ambiguity they exploit in the voting sphere, but more on that in a bit.)
These new red-state majorities also curtailed early voting, same-day registration and pre-registration by high school students, peeling away more blue voters. North Carolina had all of these, making it the South’s most progressive state — until it was taken over after 2011’s gerrymander. All of those voting rights options no longer exist.
If we stop right there, that’s how the GOP has a 10 point or more structural advantage in 2018. I describe all of that in the book, which I turned in before last November’s election in Virginia. What happened there? A Democrat won the highest-profile non-gerrymandered contest, the governor’s race. All the state’s voters took part. The legislature’s lower house, which has been the subject of lots of gerrymandering litigation, stayed in Republican hands. Maybe you saw the way the last seat was settled. The Democrat and Republican tied, then drew a piece of paper from a bowl to choose the winner. The Republican, David Yancy, beat the Democrat, Shelly Simonds.
What were the numbers? 250,000 more Democrats voted than Republicans statewide. That’s out of a total of 2.6 million votes. Remember, I said the GOP has a 10 percent point lead with their gerrymandering and voter suppression tactics in many critical states. Virginia is one of those states. The Democrats had 9.6 percent more ballots cast, yet still lost the House of Delegates.
Remember that. When all those groups say they can take back the House, or take back this seat, look at the polls. Are the Democrats ahead by more than 10 points? Now to be fair, some election experts say it’s never been easier to vote, especially as many states have online registration, when they didn’t a decade ago. It’s not hard to figure out how to get the proper voter ID needed, as these kinds of tactics aren’t exactly new. That’s true. But go back to Virginia, where a blue wave crested but didn’t succeed in creating a representative legislature.
The Virginia race also highlighted something else. The technology that’s used to vote and count ballots is outdated. But beyond the fact that most voting is done on operating systems that came before the first iPhone was released, there is something else that gets little attention. There’s cultural resistance by election officials, party leaders and other insiders to update certain protocols with the most explicit political implications. I’m not talking about making sure there is enough parking (even though that's a real issue and the lack of parking can be a mess).
In Virginia, the state did a good thing a few years back, replacing most of its all-electronic machinery with paper ballot-based systems. (The exception was electronic machines for voters with disabilities.) That meant they could actually recount ballots. Before they couldn’t. If a memory card failed, well, those votes didn’t count. But even though Virginia’s machines had digital images of every ballot that could have been used to see who won that last House of Delegates race, they didn’t even try to use electronic ballot images. Many counties didn’t even save them. They drew slips of paper out of a bowl.
Right now, with all the focus on Russian meddling, Congress could spend $400 million it has left over from a 2004 bill (when states got what they have now) to buy voting machines to help 20 percent of the country transition from paperless systems to paper-based systems. If you use paper systems, you then step up audit protocols to verify the vote counts. That’s the best that can be done in 2018 to prevent hacking, whether by Russia or domestic partisans.
But the GOP leadership in Congress isn’t acting on any of this. Across the country, the civil servants who run elections wish they could modernize. That includes paper record trails and better ways to verify the count. But Congress isn’t budging. Some states, mostly blue ones, like Washington, are doing what they can.
This isn’t just a Republican problem. Democrats have their own resistance to modernizing key features of the process. That starts with the party’s presidential caucuses in Iowa and Nevada and elsewhere. They are utterly unprofessional. These mom-and-pop operations are often chaotic messes. Procedurally, they also don’t release the raw vote totals. Their management, technology and execution do not reflect the stakes — which is electing the president.
We can talk about Russian interference, which so far, only got inside voter rolls in one state, Illinois, in 2016. We can talk about hacking the vote count, which is always a theoretical possibility, but one where public officials won’t let academic experts observe in real-time, during elections, to see if something is going on. We can talk about lots of conspiratorial things in the process where there is no proof it is or isn't happening.
But if we take a very grounded look at the rules and laws surrounding who votes, what elections they participate in, whether their votes count or are disqualified, how reliable the equipment is, and what are the obstacles to change, a pattern emerges. As much as we put democracy on a pedestal, we treat voting poorly. That’s not a knock on the civil servants who have to make the process work. They’re to be distinguished from elected officials who think everything’s fine because they won.
We can do better. I started writing "Democracy Betrayed" after the aborted recounts in 2016. The Greens did what the Democrats should have done, but alas never do. They pushed to verify the vote count, in Michigan, Wisconsin and Pennsylvania. Only Wisconsin came close to having an actual recount. But there, once again, they didn’t examine paper ballots. The biggest counties ran them through high-speed scanners, whose known error rates were higher than the margins of victory. Computer scientists said that in court documents. Some academics from Michigan, after Trump was declared the winner, found that Clinton probably won. But just like in Florida in 2000, a Republican majority court stopped a recount that could have verified that. She wouldn’t have won the presidency, but we wouldn’t hear reports about Reagan Democrats turning toward Trump.
"Democracy Betrayed" starts with the Democratic primary, which is a good way to wade into these waters. It moves to what the GOP has done this decade, which is the meat of the book and is what will determine who wins and loses in many states this fall and in 2020. It continues with the 2016 recounts, and it concludes with how many of these trends and tactics are recurring under Trump.
Let me mention two trends we should watch.
First, there are two big voting rights cases before the Supreme Court. One is about extreme partisan redistricting. Is it unconstitutional? The other case concerns voter roll purges. That case comes from Ohio, where Jon Husted, the GOP secretary of state, used a legal ambiguity to disproportionately purge higher percentages of voters from blue cities, but not voters from surrounding red suburbs. It tilts the field by pre-determining who participates, much like gerrymandering.
There’s another variation on this cynical theme: knowingly using bad data to delay approving new voter registrations until the next election cycle, not the race where people expected to vote. This is an invisible bureaucratic way to prevent tens of thousands of people from casting votes that will count. That’s what happened in Georgia in recent cycles. These first-time voters may show up at the polls, make a stink and get a provisional ballot, but their votes will not count. How bad is the data? Well, if you only use the last four digits of a Social Security number, not the full nine-digit number, to verify one’s identity on a registration form, guess how many more false positives, of "duplicate" numbers, appear? That takes more time to check out, impeding the process. This happened.
What also happened is that a top Democratic legislator, Stacey Abrams, ran a voter drive where she collected paper registration forms — probably to copy the new voters' information for campaign purposes — and that fed the paperwork snafu that Georgia's Republican Secretary of State Brian Kemp exploited. Abrams could have urged people to register online, avoiding that mess, but didn’t. In 2018, Kemp and Abrams are running against each other to be Georgia’s next governor.
The other big gambit to watch in 2018 is requiring paper proof of citizenship to register to vote, like a passport, immigration papers or a birth certificate. This is one of Kansas Secretary of State Kris Kobach’s ploys. Trump appointed him to co-chair an election reform commission that has since disbanded. He wants the country to do what Kansas, Alabama and Arizona have done — require additional documentation to register for state elections, not federal elections. That’s separate and unequal. Why? Because 7 percent of otherwise eligible voters don’t have such ID, academics report. This week, Kobach is in a Kansas court defending that suppression tactic after being sued by the ACLU.
Why is Kobach so gung-ho to say that signing one’s name as a legal oath on a registration form is insufficient? Add a law winnowing an additional 7 percent of otherwise eligible voters to the 10 percent starting line advantage the GOP has in battleground states from extreme gerrymandering, stricter voter ID and other tactics, and you can see its tactical appeal.
But back to what it takes to win in 2018. The GOP has a 10-point lead in more than a dozen states that are key to the House and Electoral College majorities. That tells you how high the blue turnout wave has to be, at minimum, to end up with winning vote counts. But most of all, Democrats must elect governors in November to veto future bad gerrymanders — after the 2020 Census and 2021 redistricting process — if you don’t want the 2020s to be like this decade where otherwise purple states have been run by red supermajorities. Those governors’ races are in Florida, Michigan, Ohio, Georgia and Colorado.
But it all matters. It starts with knowing what barriers to voting matter the most, what it takes to surmount them, and breaking the 40-year pattern in the United States, in which a third of voters who vote for president stay home for the midterm elections.
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