On election night 2020, there was a path — ultimately not taken — that could have made all the difference. The one that, in the months leading up to Nov. 3, excited all the Nates in ways only numbers can and was single-handedly able to recharge Steve Kornacki’s battery pack with merely a thought.
That path was Joe Biden’s narrowest route, a harrowing one that went through Wisconsin and Arizona and Nebraska’s 2nd congressional district to exactly 270 electoral votes. You know, the map that might have broken our democracy, and the result you’d get if Rudy Giuliani could substitute his vote for all Pennsylvanians and if Lindsey Graham could personally do signature matching for all black Georgians.
That 270-268 victory might just have held up, through recounts, Brooks Brothers riots, legal challenges, state legislature shenanigans, suborning faithless electors and an invasion of the Capitol. But like our teetering democratic norms and institutions, it won’t survive the next time. In the 2024 election, the 23 states plus D.C. and that one district around Omaha that currently get Democrats to 270 will no longer suffice. Our decennial reapportionment will foreclose it. Unless Democrats fight it — with this One Weird Trick.
Let’s imagine, if you will, a United States in turmoil, divided, 20 years into a century that began with optimism but quickly descended into a world of war and a global pandemic. We don’t have to, of course, because such was the state of our union in 1920.
In the previous decade, the American agrarian idyll had given way to a majority urban population. More than 100,000 Americans died in Europe, and as World War I wound down, the U.S. imported a Spanish flu that would kill 675,000 here, as well as millions of people fleeing Europe. It was against this chaotic backdrop that rural representatives balked at the results of the 1920 census. Their official reason involved a change to the census calendar, with the count beginning on Jan. 1, when farmworkers were in the cities (here I’m relying on Margo Anderson’s “The American Census: A Social History“), but the gist was that America ought to be for Real Americans.
And why wouldn’t white rural interests feel entitled to keep their federal power? A nation that had declared all men to be created equal only let white men vote. It created a Senate designed to appease the farming states. It let those farmers buy and sell black people, and then count three-fifths of them for federal representation. And when that system was threatened, those rural states started a Civil War, and after losing, unchastened, ignored the 14th Amendment to impose Jim Crow.
So they didn’t accept the 1920 census, and reapportionment based on it never occurred. Immigrants and people who lived near other people were underrepresented throughout that entire decade until the Reapportionment Act of 1929 set forth permanent rules for all future censuses.
But that poisonous strain of thought lives on today in the GOP, the embodiment of and representatives of rural America’s entitlement. Washington Republicans see power as a means to more power, not to actually helping people. In the 2017-2018 period of unified GOP control, they did not pass a positive bill to improve our lives. They did not try to build or reinforce an institution or program, only aiming to destroy the tax base and the Affordable Care Act. Building things is hard and leaves you open to criticism and second guessing. It’s easier to be the Party of No, lobbing spitballs at the go-getters. So they used their minority rule in the Senate and minority rule in the Electoral College to stack the federal judiciary with more agents of minority rule, ready to strike down any laws the Democratic suckers are able to pass in the future.
Republicans were, however, proactive in one endeavor. They frontloaded their census fuckery. Americans may not have realized in 2016, when they voted for Donald Trump or voted third-party or sat out the election, that his term would include a year divisible by 10. Or that his Commerce Department would be conducting that census. Or that his pick for commerce secretary would be, as John Madden might put it, a person willing to work for Donald Trump. Wilbur Ross and Donald Trump share the same ethical plane.
They also share the same outlook as those aggrieved congressmen of 1920. They see a world where people who look like them (or slightly less orange) make up an ever-dwindling percentage of the electorate, down to 67 percent in 2018. Trump’s response was to try to curtail illegal immigration, legal immigration and even visitors from certain places “until our country’s representatives can figure out what the hell is going on.” Ross was no subtler, although certainly more secretive. From the beginning he wanted a citizenship question on the census, an addition that experts warned would lead to a significant undercount of minorities, and the Washington Post estimated would move two congressional seats from blue to red. In 2017 and 2018, Ross was in contact with confirmed racists Steve Bannon and Kris Kobach on how to get that question inserted. Both worked for the White House, Bannon as a senior adviser and Kobach on the president’s “voter fraud” panel that disbanded without finding evidence. Ross stated in court that he’d had no White House contacts, an easily provable lie, then claimed it was his idea to add the citizenship question to enforce the Voting Rights Act. Even Chief Justice John Roberts, noted voting rights suppressor, couldn’t stomach such a pretext, joining a 5-4 decision in 2019 that removed the question.
Then there was the actual administration of the census starting on April 1, 2020. NPR has a good timeline, with career civil servants asking for more time almost immediately due to the pandemic. At first the Trump administration agreed, but the necessary legislation went nowhere, and by the summer the White House committed itself to delivering numbers on time on Dec. 31 that would have excluded undocumented immigrants. Then, in October, Trump officials stopped the count a few weeks early. It’s a count that would violate the 14th Amendment, and according to multiple bureau officers, be incomplete.
At this point, nearly two weeks into the new year, no results have been sent to the House. Last week, the Justice Department stated in court that the final report won’t be done until Feb. 9, according to the Washington Post, which also quoted a former staff director of the House census oversight subcommittee warning of further improper meddling. “President Trump could still try to pressure the bureau to rush the process, skip steps that would help ensure accurate results, and give Secretary Ross what is essentially incomplete data for apportionment before he leaves office on January 20,” Terri Ann Lowenthal told the Post.
The potential electoral consequences of our decennial census could not be made any clearer than by our recent presidential elections. The map that George W. Bush used to win the 2000 election by a count of 271-266 would have been a 271-267 Al Gore victory, using the previous map that had ushered out by the 1990 census. When Bush increased his number of electors by 15 in 2004, seven of the 15 were direct results of the 2000 census. A close look at the 2010 census shows that an undercount of just 9,000 people in Minnesota would have sent a House district and an additional electoral vote to North Carolina. If that had been the case, that narrow Biden backstop to exactly 270 would not have existed. Instead, that hypothetical election would have ended up in the dreaded 269-269 Electoral College tie, and an eventual Trump win in the House of Representatives. On Election Day and the days after, as Pennsylvania and Georgia slogged to a final tally, we would have had quite a bit more reason to worry. We might even have had to take Rudy and Lindsey seriously.
The population shifts that gave Bush 43 the initial victory and nearly gave Trump a lifeline are part of an established trend, with the percentage of people living in the South and West increasing at the expense of the Northeast and Midwest. Eleven House seats made that journey after 2010, building on the 10 seats from ten years prior. Estimates for this time vary, but it appears that 10 states will lose a district: Alabama, California, Illinois, Michigan, Minnesota, New York, Ohio, Pennsylvania, Rhode Island and West Virginia. In this scenario Texas would gain three seats, Florida two, and Arizona, Colorado, Montana, North Carolina and Oregon would pick up one each.
A little quick math shows that the states Trump carried in 2020 will quite likely be worth four more electors in 2024. In other words, the path to victory by winning Wisconsin, Arizona, and Nebraska’s 2nd district definitely won’t work. Depending on the final numbers, Wisconsin plus Georgia probably wouldn’t work either. If you’re hopeful that Georgia will continue to trend toward Democrats, but also believe that Pennsylvania’s long-term track is in the other direction and that Arizona might have been a one-off, correlated to Trump’s disdain for John and Cindy McCain, the new math is scary. If that’s not enough, The Hill reported last month that the 435th (and final) seat to be apportioned might come down to a choice between Alabama and New York. If that’s the case, rural interests might win out because in this case, the count started on April 1, when 2,000 people had died from COVID in New York State and thousands more had fled from a virus that the president did nothing about — in part, because he thought it only attacked blue states. Just a few thousand people gone could be decisive. That 9,000-person difference in 2010 in Minnesota was actually not historically close; in 2000, Utah lost out on a seat to North Carolina by less than 900 people.
Moving those four hypothetical House seats from blue states to red would also affect the House itself: In the new Congress, Democrats hold a bare majority, just four or five seats more than the 218 needed for control. In the next year, state legislatures will draw new lines for their districts, and in the states where one party has unified control, there will be aggressive gerrymanders, similar to those engineered by Wisconsin and North Carolina Republicans after 2010 in order to maintain power, no matter what the voters wanted. (The Supreme Court has since ruled that political gerrymandering is not justiciable.) Two of the states with unified GOP control are Texas and Florida. Any extra seats they may get will be kept safely away from Democratic hands.
Their ability to do so stems from the same 1929 law that ended the lost census decade of the 1920s. As Anderson writes, “The 1929 law removed the standard language from the reapportionment stature requiring ‘compact,’ ‘contiguous,’ and equally sized congressional districts. Effectively, Congress kicked the reapportionment problem to the state level.” The Supreme Court eventually curtailed further chicanery regarding district imbalances, but the states are still in charge, and some districts are definitely not compact.
It was in Section 22b of that 1929 law that Congress set out the procedure for future reapportionment, later cleaned up in 1941 and now comprising Title 2, Chapter 1 of the U.S. Code. The Census Bureau, under the Commerce Department, sends its results to the president by Dec. 31, and within a week of the Jan. 3 start of the next session, the president sends that report to Congress. And then, “It shall be the duty of the Clerk of the House of Representatives, within fifteen calendar days after the receipt of such statement, to send to the executive of each State a certificate of the number of Representatives to which such State is entitled under this section. In case of a vacancy in the office of Clerk, or of his absence or inability to discharge this duty, then such duty shall devolve upon the Sergeant at Arms of the House of Representatives.”
Those last two sentences are a circuit breaker. The Republicans in the executive branch and in the state legislatures all want the new numbers to be transmitted. But Democrats still hold a slim majority in the House, and the majority determines who the speaker is, who the clerk is and who the sergeant-at-arms is. If the clerk of the House, Cheryl L. Johnson, doesn’t send a certificate to the governors, then reapportionment doesn’t happen. That duty would not fall to the sergeant-at-arms (a post that is currently vacant anyway, following the resignation of Paul D. Irving one day after the Jan. 6 Capitol invasion) because the office of the clerk is not vacant. She would not be unable to perform the duty, in this scenario, merely unwilling to do so.
There are, of course, three major problems with this idea. The first is that the Democratic majority cannot control the clerk. Johnson, a lawyer and member of the D.C. bar, will make her own decisions based on how she views her job, and there’s no reason to believe she is likely to go off-book. But Democratic leadership or even backbenchers could make their feelings known, in the same mob-boss manner Donald Trump uses when insinuating that people should commit crimes for him. Speaker Nancy Pelosi could simply bring in a few more candidates for Johnson’s job and ask plaintively, “Who will rid me of this meddlesome census?”
The second problem is that Democrats just don’t do this sort of thing. They are the party of good government, responsible government. That old Mitch McConnell tactic of withholding support for the thing everyone agrees on so that he can get the thing that 1 percent of the public wants? Democrats don’t fight that way. They use reason, they compromise with themselves. Republicans are the ones who threaten a debt default and swindle Barack Obama into getting everything they want. Democrats see an expiring tax law that will hit the rich hard and the middle class a little bit and lose their nerve.
The third is the word “shall.” For most of us it’s a word of promise from a period drama or Pete Seeger. But to lawyers, it basically means “must.” That’s how it was interpreted for centuries in our law. When the relevant statute was written 79 years ago, that’s almost certainly how it was intended. But over time, and certainly in the last two years of the Gas Leak Term, the word has lost its meaning.
Whatever “shall” meant in 1941, it probably meant about the same in 1924. That’s when a law was passed giving the House Ways and Means Committee the power to view any citizen’s tax return. Committee chairman Richard Neal asked for Trump’s returns in April of 2019. At first Treasury Secretary Steve Mnuchin delayed. Then he refused. House Democrats took the matter to court, where it has bounced around, never to be resolved in any useful timeframe. In fact, “shall” occurs and is ignored all over the federal code. For instance, the Budget and Impoundment Control Act of 1974 requires a resolution by April 15 that hasn’t been met in 10 years. There’s also the part of the Constitution that says the President “shall take care that the laws be faithfully executed,” which probably wasn’t originally intended as the farce it is today.
This is not a call for Cheryl L. Johnson, or whoever the Democratic majority may install in the job at any moment, to do anything illegal. It’s not a call to do anything. It’s a call for Johnson to see her duty as more than just her job, and to accomplish that duty by doing less. It’s a time-honored American tradition akin to the filibuster. Rural politicians accomplished their goals in the 1920s by not agreeing to reduce their numbers. The Assault Weapons Ban no longer exists because it was allowed to expire by Republicans. The Violence Against Women Act met the same fate. The Supreme Court delayed as long as possible and ran out the clock on the Trump tax issue.
In that light, a refusal to transmit the census information by Johnson would not be out of line. She would have her pick of any number of justifications: The census is incomplete, and not have been delivered to her within a week of the new congressional session, as required; any count that excises unauthorized immigrants violates the Constitution; all states that engage in voter suppression need to have their population count reduced, in accordance with the 14th Amendment; the Commerce Department engaged in practices to suppress the count; the commerce secretary who supervised the count had previously, as vice president of the Bank of Cyprus, had exceedingly dubious business dealings with agents of the Russian government, whose interference in the 2016 election is a major reason he has that job.
On that last point, and in light of the extensive and possibly continuing Russian hack of several U.S. government agencies, including the Commerce Department, Johnson could just state that she’s withholding the certificates “until our country’s representatives can figure out what is going on.” Just a complete shutdown. It might take months or even years.
There will be blowback, certainly. Some Democrats, especially in states that stand to gain seats and federal funding, may balk. Republicans will scream. A few will risibly say it’s worse than anything Trump ever did. But even if the Trump administration miraculously sends its report to Congress this Monday, more or less in line with the statute, Trump’s term will end before the clerk’s 15-day reporting period ends. When that period ends without her sending certificates, some entity could take her to court. Whether she could be compelled to act is unclear.
Before any challenge could be made, Democrats will hold the presidency and, thanks to last week’s Georgia runoff elections, a 50-50 majority in the Senate. Theoretically, they could then pass a bill to complete the census through reconciliation or by removing the filibuster. Or, since the legislative majorities in both houses of Congress rely on centrist Democrats, they could try to fashion a larger fix that might attract moderates on both sides of the aisle. Reapportionment is something all believers in our democracy agree on, but that doesn’t mean Democrats can’t employ the McConnell tactic of withholding it for something they want.
They could write a House and Senate bill that includes reapportionment as well as all their other governance priorities: H.R. 1, which includes automatic voter registration, restoration of voting rights for former felons, mandatory early voting, guaranteed access to mail voting, independent redistricting committees, various provisions to clean up campaigns and several ethics reforms; a permanent repeal of the debt ceiling; an end to political gerrymanders; an end to political “burrowing” into agencies, even retroactively; statehood for the District of Columbia, so its citizens can have representation, as well as security forces that a governor could use, let’s say, to help protect the Capitol from ransacking when the president foments a mob uprising; self-determination for Puerto Rico; reforms to restore the independence of the Justice Department; and the John Lewis Voting Rights Act. They could even add in other broadly-supported ideas like universal background checks on gun purchases, automatic stabilizers, renewable subsidies and a break-up of Big Tech.
Republicans would get the thing they care about the most. Reapportionment gets them a better electoral map, which increases the chance they can win back the presidency, which will allow them to appoint more “conservative” judges. The only thing they have actually tried to build in this century is a right-wing federal judiciary, and the prospect of continuing that project in the future is a great big juicy carrot Democrats can offer them
It won’t be easy. The two most moderate Democrats in the Senate are Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, and both of them would have to be on board in a situation where their interests diverge. Manchin’s state is likely to lose a House seat; Sinema’s is likely to gain one. Any legislative solution might end with them.
But it all begins with Cheryl Johnson, clerk of the House, possibly as soon as this week. This is not a call to action. It’s a call to inaction.
Mitch McConnell would be proud.
