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Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily. If Democrats and those on the left want to draw one lesson from the lopsided 64–36 victory of Proposition 50 in California earlier this week, it is that the public understands that these are not normal times, and that to get democracy on track again in the U.S. it may take some drastic, norm-breaking measures. If in the period after Donald Trump’s tenure, Democrats retake control of the House and Senate and secure the presidency, bold election reform that protects both free and fair elections and voting rights must be on the table. Tuesday’s victory of Proposition 50, engineered by California Gov. Gavin Newsom and California Democrats, is remarkable. Consider that in both 2008 and 2010, California voters went to the ballot box to take redistricting away from the Democratic Party–dominated Legislature and put it into the hands of voters. Proposition 50 temporarily reverses the 2010 initiative that had a commission made up of Democrats, Republicans, and independents draw district lines for Congress and replaces it with a blatantly partisan gerrymander that will help Democrats and hurt Republicans in the 2026, 2028, and 2030 elections. Democrats may garner five more seats than they otherwise would by reconfiguring what were some safe Republican districts. It’s already led Republican Rep. Ken Calvert to announce he is now going to run in a district currently represented by another Republican, Rep. Young Kim. Proposition 50 never would have had a chance of passing in normal times, but Democrats had such a cakewalk that a few weeks before the election Newsom told supporters to stop sending money to support the measure. The reason is no mystery: Donald Trump pushed and prodded the Texas Legislature first to take their existing Republican gerrymander of that state’s congressional districts and squeeze out five more Republican seats. Proposition 50 was a response to Trump’s maximalist zero-sum politics in Texas, which has set off a race to the bottom in a number of states to engage in partisan and counterpartisan gerrymanders. The redistricting process is hard to explain to regular voters, but Democrats successfully portrayed the measure as a response to Trump’s power grab. Indeed, former President Barack Obama engaged in regrettable hyperbole, stating in a campaign ad that “Republicans want to steal enough seats in Congress to rig the next election and wield unchecked power for two more years.” (I’d reserve talk of “stealing” for actual attempts to overthrow the results of a legitimate election, as Trump tried to do when he lost to Joe Biden in the 2020 election race.) But Obama got to the nub of the matter when he told a group of Proposition 50 volunteers: “The essence of Prop. 50 is to say that if you are going to play that game, then we are going to try to counteract that abuse of the system.” In the short run, the redistricting arms race is bad for voters overall. If you are a Democrat in Texas or a Republican in California, you now have much less representation in Congress. But there could be long-term gain if voters are willing to see norm breaking to protect democracy. Professors Joey Fishkin of UCLA and David Pozen of Columbia have a name for this tactic: They call it “constitutional anti-hardball.” The idea is to break norms (not laws) to enact measures that make it harder for both sides to game the system. Writing in the San Francisco Chronicle after Tuesday’s Proposition 50 victory, Fishkin urges Democrats, if and when they retake Congress and the presidency, to pass a law banning partisan gerrymandering in congressional elections around the country. That’s anti-hardball; hardball would be installing Democratic gerrymanders throughout the country. Such a measure, however, could not pass unless Democrats have 60 seats in the Senate thanks to the filibuster, something that seems very unlikely. So another key form of anti-hardball involves changing the filibuster, the rule that requires 60 voters, rather than a 51-vote majority, to pass most things in the Senate. Both Democrats and Republicans in recent years have eliminated the filibuster for both lower court judges (something done by Democrats) and Supreme Court justices (something done by Republicans). Back in 2018, I wrote in Slate that Democrats should blow up the filibuster to pass election reform: Faced with the latest flurry of hardball Republican tactics on voting issues this election cycle, Democrats are grappling with the reality of an opposition that now seems determined to cement long-term minority rule. In order to combat this dynamic, progressives need a plan of their own for the next time they control both houses of Congress and the presidency. The single best step that Democrats could take under a future unified control would be to use the “nuclear option” to expand voting rights. This would let Democrats, by a simple majority vote, enact wide-ranging voting reform, from restoring a key part of the Voting Rights Act, to automatic voter registration, to statehood for D.C. When Democrats had control of both houses of Congress and Joe Biden was in the White House, the House passed and a majority in the Senate passed both the John Lewis Voting Rights Amendments Act and a broader package of election reforms. But Democrats, especially Sens. Joe Manchin and Kyrsten Sinema, were not willing to make an exception to the filibuster to get a final vote for the legislation in the Senate, meaning that this legislation died. That was a costly mistake. In an age when voters see Donald Trump breaking norms to solidify his power and move the country toward authoritarianism, trying to just return to normal after Trump and pretend the last decade-plus of threats to democracy did not happen is not a good strategy. It will just leave more openings for the next would-be authoritarian. Proposition 50’s decisive victory shows that voters are enthusiastic about breaking norms, if doing so can achieve national partisan fairness and to counter the many anti-majoritarian features of American democracy.
