2018

The Perils of Voting by Mail

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by Steven F. Huefner

Anecdotal evidence of fraudulent absentee ballot harvesting in North Carolina in last month’s midterm election already demonstrates the need for greater vigilance in how states conduct voting by mail, whether or not North Carolina ultimately must rerun the election for its 9th Congressional District.

Bladen County, North Carolina, provides the latest object lesson for anyone genuinely interested in improving American elections. Each day this past week brought a new revelation about apparent absentee ballot fraud there, fraud that appears increasingly likely to lead North Carolina authorities (or the U.S. House of Representatives) to call for a new election for the state’s 9th Congressional District. But whether or not that entire congressional race must be rerun, the story that has emerged from Bladen County already makes clear the need for all states to be vigilant in how they manage their absentee voting processes.

At issue in North Carolina is the reliability of vote totals showing the leading candidate ahead by just over 900 votes, in light of questions about whether those vote totals accurately reflect the votes of over 14,000 voters in the 9th Congressional District who requested absentee ballots, including more than 3,000 such voters whose absentee ballots were not returned. North Carolina officials justifiably have refused to certify the results of this race pending an investigation into a panoply of allegations about these absentee ballots, many concerning the activities of the Red Dome Group (a political consulting firm working for the leading candidate) and one of Red Dome’s operatives, L. McCrae Dowless Jr.

For multiple reasons, absentee voting outside the watchful eyes of election officials, often called voting by mail (in contrast to early voting that occurs in-person at a voting center), has long been the weak link in the reliability of our elections. Central to the North Carolina investigation now underway is the practice of “ballot harvesting,” in which a candidate’s or a party’s supporters round up as many voted absentee ballots as they can for hand delivery. Arguably, an innocent version of this practice exists, a practice not much different from traditional Election Day get-out-the-vote drives, in which the harvested ballots are all cast legitimately by eligible voters and returned to election officials for counting. But unfortunately, absentee ballot harvesting all too often devolves into electoral fraud, as every indication now suggests has occurred in Bladen County and perhaps elsewhere in the 9th Congressional District.

At least three distinct kinds of fraud can occur when political operatives “assist” in returning absentee ballots. First, those collecting the ballots can intentionally discard (or conveniently lose or misplace) any ballots they suspect or know (perhaps even by opening the ballot envelopes) have been cast in favor of the “wrong” candidate(s). Second, those collecting the ballots can open the ballot envelopes and change or alter whatever votes the voter originally recorded. Third, those collecting the ballots can collect unvoted ballots (or partially voted ballots) and complete the ballots themselves.

Although this third type of fraud may sometimes depend on the complicity (or negligence) of an absentee voter in possession of an incomplete absentee ballot, the first two types of ballot harvesting fraud can occur without any wrongdoing on the part of the absentee voter, other than being duped into turning the ballot over to a ballot harvester. Moreover, even the third type of fraud sometimes can occur without the complicity of an eligible voter, if the perpetrator is able to request absentee ballots on behalf of eligible voters without those voters’ knowledge and then control the locations to which the ballots are delivered.

Yet a fourth type of problem can arise if the person collecting the ballots improperly influences the voters’ choices in marking the ballots. Although improper influence in the marking or casting of an absentee ballot can occur not only with harvested ballots but also with any other absentee ballot cast outside the presence of election officials, including undue influence exerted by family members within the same household, the practice of ballot harvesting exposes whole groups of absentee voters to greater risks of such influence. Some may be reluctant to call this conduct “fraud,” but it too is an unlawful distortion of a fair voting process.

While it is still early to be sure of the extent or impact of the misconduct in last month’s North Carolina election, preliminary investigation suggests that perhaps all four of the above-described types of misconduct may have occurred in the 9th Congressional District. The leading candidate’s most recent campaign finance disclosure report (filed after the election) revealed that the candidate owes the Red Dome Group some $34,000 for the “door to door” activities of “early voting poll workers” – in other words, for ballot harvesting. Meanwhile, an increasing number of stories specifically about the activities of Mr. Dowless suggest that the actual harvesting activities in which he engaged were not of the pure get-out-the vote kind, but instead ran the gamut of the kinds of vote harvesting fraud described above.

This year’s ballot harvesting fraud in North Carolina is hardly the first time such problems have occurred. On the contrary, comparable absentee balloting abuses have been all too frequent, if not as high-profile. For instance, absentee ballot fraud resulted in a state court throwing out the results of a Miami mayoral contest in 1997, and an ostensibly above-board absentee ballot harvesting effort proved the undoing of the Detroit City Clerk in 2005.

Because of the various risks of absentee ballot harvesting, many states, including North Carolina, laudably have laws that prohibit or regulate the practice. In North Carolina, a statute already on the books provides that only a voter or a voter’s family member (or the U.S. Postal Service) may legally return a voted absentee ballot. Yet from the reports this week, apparently many North Carolina absentee voters are unaware of this anti-harvesting provision, while at least some North Carolina county election offices accept hand-delivered absentee ballots without regard to whether they have been returned in compliance with the anti-harvesting measure.

Other observers of elections also have recognized the problems of ballot harvesting. Earlier this year, a federal district court in Arizona upheld over a Democratic Party challenge a state statute adopted in 2016 to prohibit the practice. Meanwhile, the American Law Institute, in its just published volume Principles of the Law: Election Administration [for which I served as the Associate Reporter], has articulated the principle that anyone returning absentee ballots on behalf of another person must not be allowed to return more than two ballots per day. However, other states, as well as various advocacy groups, continue to defend or promote absentee ballot harvesting as a way to offer additional voting convenience and (arguably) to increase turnout.

But the North Carolina story makes clear that it behooves states to do more to promote the security of absentee voting by mail. For starters, reform advocates must recognize that the convenience of absentee voting comes with a cost. By contrast, in-person voting, whether on Election Day or beforehand, has none of the risks that the unfolding scandal in North Carolina has exposed. (Additionally, though unconnected to the problems of ballot harvesting, in-person voting also has much lower rates of lost votes or invalid ballots than does mail-in voting.)

Meanwhile, efforts to impose strict voter identification requirements ostensibly to secure voting against the hypothetical and seldom realized possibilities of in-person “voter fraud” do nothing to reduce the very real – and frequently realized – risks of absentee voting fraud, and if anything serve to misdirect attention away from where it is needed. Instead, measures necessary to promote the integrity of absentee voting include, among others, prohibitions on ballot harvesting, enforcement of these prohibitions through monitoring of the ballot return process, public education about the proper way to return a voted absentee ballot, and absentee ballot tracking tools for voters.

Indeed, absent public awareness of the hazards of ballot harvesting, the first form of ballot harvesting fraud – when operatives collect a batch of absentee ballots only to discard them – can be especially difficult to detect and prevent. So it also behooves each voter both to know that delivering a voted ballot to any intermediary is fraught with risk (and may be illegal, depending on the state), as well as to take advantage of whatever mechanisms election officials make available to track the status of an absentee ballot to make sure that the voter’s voted ballot has reached the election officials. But after witnessing what has happened this past election in Bladen County, no state should hesitate to make absentee ballot harvesting illegal, and to take steps to increase awareness and enforcement of this prohibition.

Counting Ballots Pursuant to Law is Not Stealing an Election

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by Steven F. Huefner

Our election systems are deliberately designed to require careful counting of many additional ballots for several days after unofficial results are announced on Election Night.

It has been less than 72 hours since polls closed on the 2018 congressional midterm elections, and for candidates and their supporters who do not yet know the outcome of close contests, patience – not unsubstantiated or false allegations of election rigging – MUST be the order of the day.

As any close observer of U.S. elections knows, once the polls close each state then conducts a carefully structured process of tallying the votes. Critically, as any close observer also knows, the Election Night “results” are not only unofficial, they are also still entirely preliminary and will almost inevitably change, perhaps considerably. With the dramatic rise in the use of mail-in absentee voting over the past decade, election officials increasingly must deal after Election Day with a significant volume of paper ballots that have arrived around Election Day (each state sets its own rules for when the ballots must arrive). Meanwhile, provisional ballots also require individual review and processing after Election Day. These post-election processes are not some mere afterthought; rather, they are critical components of determining the official election outcome, and they must be respected as essential to the overall integrity of the election.

Although these processes occur as part of every election, they understandably do not attract much attention when the unofficial results reported on Election Night are not close. But for election officials, it is a routine part of their duties after every election to undertake the laborious and thoroughgoing canvassing processes now occurring everywhere, not just in states like Florida, Georgia, and Arizona (where some high-profile races are quite close or essentially even). In every election, these processes need to occur in ways that promote public trust, and election officials must be required to adhere to the law that governs these processes. (The American Law Institute has just published an extensive set of legal principles and related commentary designed to promote the fair resolution of disputed elections, developed after several years of collaborative work with a team of expert advisers, in which my Moritz colleague Ned Foley and I also participated as the project’s “Reporters.”) Correspondingly, candidates and the general public should be able to insist that election officials perform these duties properly.

Thus, it is beyond unseemly – indeed, it is downright destructive of public trust in our elections, and fundamentally inconsistent with the health of our representative democracy – for candidates to assert or imply that the reason that Election Night results have been changing in the past few days is because election officials have engaged in some sort of irregular or unlawful conduct to manipulate the results. For anyone who cares about democratic institutions, the responsible position is to let the counting proceed according to state law, and then if necessary to take advantage of recount, audit, and contest processes to ascertain whether any defects occurred in these processes.

We can revisit for future elections whether our system has come to rely too heavily on counting ballots days after Election Night. But that is a policy question for a later date, and all ballots cast in this year’s elections must be scrupulously counted according to the laws established for this year’s elections. Leaders of both parties, with the support of all concerned citizens, ought to condemn any effort to undermine this essential stage of the electoral process.

A Special Master for the Cohen Case?

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There should be a strong presumption against special treatment just because the president is involved.

As one who has studied the role of impartial institutions for the purpose of resolving electoral disputes—and has advocated the creation of special nonpartisan tribunals in high-profile cases (like Minnesota’s Coleman-Franken recount in 2008)—I wonder whether the appointment of a special master, as Judge Kimba Wood is reportedly considering, is appropriate for the review of the material seized from Michael Cohen,.

If a special master were appointed whenever the government seizes arguably privileged material from an attorney, rather than the government using a “filter team” to prevent violation of the attorney-client privilege, then certainly it would be appropriate to appoint a special master in this case.  But if the standard practice is to rely on the government’s filter team to protect the attorney-client privilege adequately, and not to use special masters in this context, then it is questionable whether it is warranted to appoint a special master in this case just because the client is the U.S. president. It suggests that the president is entitled to special treatment, not available to ordinary citizens, just because he is the president.

To be sure, under the U.S. Constitution there are some issues and situations for which the president must be treated differently than other citizens, simply by virtue of holding the unique office of the presidency. The assertion of executive privilege, as distinct from attorney-client privilege, is a prerogative distinctly belonging to the president.  (As far as I am aware, however, there is no assertion of executive privilege in the specific context of the Cohen documents.  Nor can I see how executive privilege could apply in that context.)  Moreover, as the Supreme Court expressly held in Nixon v. Fitzgerald, the president is entitled to absolute immunity from civil liability for conduct performed as part of his official duties as president.  And of course there remains the longstanding and unsettled question whether a sitting president must be exempt from criminal prosecution, either in state or federal court, until the president’s term in office expires.

But based on publicly available information concerning the materials seized from Michael Cohen, these materials concern his representation of Donald Trump before he became president, or at least regarding matters unrelated to his presidency, and thus do not implicate any reasons for which the legal system might treat an incumbent president different than other citizens.

According to press reports of today’s hearing, Judge Kimba Wood is considering the appointment of a special master, not for the sake of the president himself, but to foster public perception – especially among the president’s political supporters – of his being treated fairly by the legal system. This “interest of avoiding the appearance of bias in the politically charged case” bears similarities to the use of nonpartisan adjudicators to resolve election disputes.

But there is a difference between the two kinds of cases. Disputes over the counting of votes are inherently partisan: the competing candidates from opposing political parties are necessarily adversarial, as each side seeks rulings from the adjudicator that will move the vote count in that side’s favor.  The dispute in the Cohen case is not inherently partisan in the same way: it is not a fight between Democrats and Republicans over an electoral outcome.  It is not even as inherently partisan as the pending litigation before the Supreme Court over the issue of gerrymandering, which pits the parties against each other in the fight over legislative redistricting in an effort to make the redrawn map more favorable to one side or the other.

There are many legal issues that have partisan overtones, and obviously any litigation in which a major political figure, like the president, is a party in interest will have political ramifications.  But if a special nonpartisan tribunal is necessary for all these cases, it suggests our regular legal system is inherently unreliable in handling any dispute with partisan implications.  That’s a very dangerous message to send: if it’s not true, it shouldn’t be fostered; and if it has become true, America is in serious trouble.

Thus, it seems to me that there should be an extremely strong presumption in favor of using conventional procedures to handle the Cohen case.  If those procedures would be good enough if the client involved were a major business figure (like Mark Zuckerberg), or a major sports or entertainment figure (like O.J. Simpson), then they should be good enough if the client is a business and entertainment figure who later becomes president (like Donald Trump).

One Theory or Several?

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The answer, surprisingly, may end up “several,” with no single constitutional theory solving the problem of gerrymandering comprehensively.

Much of the coverage of yesterday’s oral argument in Benesik v. Lamone, the case of congressional gerrymandering in Maryland, noted the apparent uncertainty among the Justices over the various theories that have been propounded in this case, among others, on why extreme gerrymandering might violate the federal Constitution.  Referencing the Wisconsin case argued last November, as well as the North Carolina case that has arrived at the Court more recently, Justice Breyer wondered whether it would be wise to have all three argued together simultaneously, so that the theories raised in each – including those in amicus briefs – could all be compared against each other. (Page 26-27 of the transcript.) The idea seemed to be that the one best theory might emerge from this intellectual free-for-all.

But what if the Constitution’s relationship to the problem of partisan gerrymandering doesn’t work in a holistically unified way?  What if there are multiple provisions in the actual text of the existing Constitution that bear on the problem to some extent, each relating imperfectly to the phenomenon of partisan gerrymandering in its own implicit and rather indirect way?

The Court has struggled for so long with the issue of partisan gerrymandering (and has come up empty each time it has tried to identify a workable theory for tackling the issue), that the assumption has been that there is either one workable theory or none at all.  It couldn’t possibly be the case after all these years—could it?—that there are actually multiple judicially manageable ways to identify an egregious partisan gerrymander as violating the federal Constitution?

But there are reasons to be skeptical, at least early in the stages of the intellectual inquiry, that there would be a single “grand unified theory of partisan gerrymandering” under the U.S. Constitution.  For one thing, there is no one clause of the Constitution that explicitly identifies gerrymandering as a practice that is unconstitutional.  (If there were, the Court’s obligation to enforce that prohibition would be much more directly straightforward under Marbury v. Madison, as I’ve discussed elsewhere.)  Instead, if partisan gerrymandering is to be unconstitutional, and to be judicially invalidated as such, it inevitably is going to be because of an inference of how some constitutional provision implicitly pertains to the problem of partisan gerrymandering even though that provision does not say anything explicit about the practice.  But once we are in the realm of inferences and implications, there is immediately the possibility that multiple constitutional clauses—not just one—have such implications and potentially warrant such inferences.  Equal Protection, Freedom of Speech, Due Process, Biennial Elections of Members Chosen by the People—all of these clauses possibly or arguably bear in some way on the concededly pernicious practice of gerrymandering, but they all do (if they do) inexplicitly and indirectly.

Also, the idea that multiple clauses of the Constitution might bear upon a certain kind of practice is hardly unusual.  State laws that are economically protectionist in nature, for example, potentially raise issues under the Commerce Clause, the Privileges & Immunities Clause (of Article IV), and sometimes even the Equal Protection Clause.  Furthermore, although it’s been a long time that I’ve practiced law in the area of criminal procedure, my recollection is that challenges to the composition of a jury can occur under both the Sixth Amendment as well as Equal Protection (and potentially maybe also Due Process).  Likewise, challenges to police interrogation practices can occur under the Fifth and Sixth Amendments (and maybe other constitutional combinations, including the Fourth Amendment, at least insofar as Miranda warnings prophylactically protect multiple constitutional rights).

Overlapping constitutional clauses, and jurisprudential doctrines flowing from those clauses, can lead to situations that (at least metaphorically) look like Venn diagrams, in which some fact patterns are covered by several clauses, some by only one clause, and some by none.  It is at least theoretically possible that something like this might apply to the problem of partisan gerrymandering.  And the availability of new statistical techniques at least raises the question whether some theories that would not have been judicially manageable in the past might now indeed have become so, because measurement and line-drawing is now possible in a way that previously was infeasible.

How is the Court best to proceed given that several approaches, rather than just one, might now be available? It is certainly tempting to think of the Court, as Justice Breyer suggested, gathering all of the pending cases and deciding them all at the same time, so that the federal constitutional law applicable to partisan gerrymandering can be as coherent and well-organized as possible.  But even if the Court were to do this, there will be other partisan gerrymandering cases in the future that might present new theories not encompassed by the pending trilogy of the Wisconsin, Maryland, and North Carolina cases.  At yesterday’s oral argument, for example, Chief Justice Roberts asked, “Is it appropriate in a case like this to look at what the district looks like in terms of the boundaries and the extent to which it complies with traditional redistricting criteria?”  (Page 48 of the transcript.) This question dovetails with some recent scholarship (including, in the interest of full disclosure, some of my own), exploring whether a federal constitutional claim can be premised on a showing of a gerrymandered district as distorted as the original Gerrymander of 1812.  But none of three cases in the pending trilogy frames a federal constitutional claim in that particular way, and so no matter how the Court rules in those three cases it would not resolve definitively the validity (or not) of this alternative distortion-focused approach.

Under Marbury v. Madison, for better or worse, the Court’s role is limited to deciding constitutional questions that come before it in properly presented cases within its jurisdiction.  The Court has no power to issue advisory opinions; that was settled long ago.  Consequently, the Court cannot observe the phenomenon of partisan gerrymandering in society and opine, in the way professors can, about whether that phenomenon is unconstitutional and why.  The Court can only resolve the specific claims that come before it in specific cases.

Thus, it might be that the specific claim in Wisconsin fails because of a technical “standing” defect, depriving the Court of jurisdiction over the claim on the merits, that was not apparent at the outset of the lawsuit.  Tough luck, but it would mean that Wisconsin case is not a proper vehicle for addressing the merits of whether the plaintiffs’ claim, premised in large part, on the “efficiency gap” metric is valid.  Likewise, it may be that the Maryland case is procedurally defective for addressing the merits of the plaintiffs’ “retaliation” theory under the First Amendment because it arises now in the context of motion for a preliminary injunction, and that motion is inappropriate for reasons of timing (as was explored by several Justices at yesterday’s argument).  If those two cases fall by the wayside in that way, then the next inquiry would be whether the North Carolina case properly presents a claim on the merits for the Court to resolve under Marbury v. Madison.  But the Court’s consideration of the issue would be confined to the record and arguments in the North Carolina case.  It necessarily would not extend to future facts or theories that might be developed down the road in new cases, especially those that might arise after the 2020 round of redistricting.

There are those who see the current circumstances as a “now or never” moment in the history of federal constitutional law as it concerns partisan gerrymanders.  I understand that sentiment, given Justice Kennedy’s perceived status as the “swing vote” on this issue and the speculation that he might step down from the bench sooner rather than later.  But I think focusing solely on the current circumstances is too short-sighted.  A 5-4 ruling this year easily could be overruled 5-4 the opposite way just a few years down the road.  (See Citizens United v. FEC, overruling McConnell v. FEC.)  The challenge for the Court is to craft durable precedents on the problem of partisan gerrymandering that will command respect on the Court from one decade to next, as the federal judiciary inevitably confronts constitutional challenges to each new round of redistricting.

The problem of partisan gerrymandering is not going away, and that is true no matter how the Court decides any of these cases.  At most the federal Constitution, properly construed, constrains extreme gerrymanders.  It does not require perfectly fair redistricting.  For that, Congress (with respect to congressional elections) or the states would have to establish genuinely nonpartisan redistricting commissions (and they would have to operate in genuinely nonpartisan fashion).  The judicial role in policing extreme gerrymanders, moreover, would need to be sensitive to the obligation of the judiciary to refrain from micromanaging the decennial task of redistricting or intruding excessively in what inevitably must remain a domain dominated by partisan politics.

Partisan gerrymandering will be a problem, for American democracy as well as American constitutional law, for as long as the Constitution itself remains textually silent on the topic of gerrymandering.  The recurring—and genuinely difficult—challenge is how to apply the document originally drafted in 1787, which says nothing explicit on how political “factions” might inappropriately manipulate legislative lines, to an evolving practice of democratic governance, which over two centuries later has well-developed political parties (in a way not entirely anticipated by the Founding concept of “factions”), and unforeseen technological developments that permitted the sophisticated manipulation of district lines far more systematically—and thus far more destructively to republican self-government—than what Elbridge Gerry and his fellow partisans in the Founding Era could have contemplated.

Confronting this challenge requires what Richard Fallon, in his superb new book Law and Legitimacy in the Supreme Court, calls the exercise of “reflective equilibrium” as applied to task of constitutional adjudication.  “Reflective equilibrium” requires moving back and forth between reasoning about the implications of general constitutional principles, on the one hand, and intuitions about the proper outcome of specific fact patterns, on the other.  With respect to the problem of partisan gerrymandering, “reflective equilibrium” means thinking systematically about the First Amendment, Federalism, Judicial Restraint, and so forth, and the relationship of those general principles to the evidentiary records established in the Wisconsin, Maryland, North Carolina, and potentially other cases.  “Reflective equilibrium” is characterized by its back-and-forth, seesawing nature.  It is not a linear, deductive process.  A Justice easily could think, “this gerrymandered district (or map) must be unconstitutional; it’s so egregious.”  Justice Kagan said something like that with respect to the Maryland case yesterday.  (See page 39 of the transcript.)  But how to fit that intuition about the specific facts to general constitutional principles?  Well, that requires moving back and forth between those principles and the specific facts, until (one hopes) one reaches “reflective equilibrium”.

But it’s a messy process, made more so by the fact that there may not be a single “reflective equilibrium” point to reach.  Instead, there may be the need for multiple “reflective equilibrium” points, one for each gerrymandering case on the Court’s docket.  The Wisconsin case calls for balancing the general theoretical claims and points raised there against intuitions about the specific facts developed in that case’s specific record.  Likewise, the Maryland case involves somewhat different general theoretical principles, because of how the plaintiffs there have chosen to litigate their case (as is their right to do), to be considered in relationship to the specific facts on the ground in Maryland, as established in the record there.  And so on, and so forth.

Constitutional law inevitably has a dynamic quality, as Fallon explained in another one of his great books.  It never can be permanently fixed at any given moment in time.  This point certainly applies to partisan gerrymandering.  Thus, no matter what the Court says in the Wisconsin and Maryland cases, don’t expect those opinions to be the last word one way or the other.  The North Carolina case will need resolution no matter what, and it presents a different combination of facts and theories than the other two.  And, most assuredly, there will be further cases down the road.

To be sure, in the system of judicial precedent that characterizes adjudication in the Supreme Court, each case matters for the next.  What the Court says in the Wisconsin and Maryland cases will be important, more or less so depending on how broadly or narrowly their rulings there—and especially whether those cases ultimately are disposed of on procedural grounds without reaching the merits.  But what will be the federal constitutional law of partisan gerrymandering in 2021 and 2022, when the next round of redistricting cases arise?  The answer to that question can be shaped, but not definitively settled, by decisions that occur in 2018 and 2019.

And the answer may end up being that not just one, but several different, constitutional clauses and principles constrain various forms of especially extreme partisan gerrymanders—although no single constitutional theory solves the problem of gerrymandering comprehensively.

Filibusters are not for shutdowns

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The minority party must win elections, not derail the government, to prevail on policy.

The three-day shutdown is past, but the danger to democracy that it signifies is not.  Hardline Democrats are threatening another shutdown on February 8 if they don’t get what they want on immigration.

This threat, dependent on a Senate filibuster, is antithetical the ongoing operation of a competitive two-party democracy, where the parties take turns at being in power as determined by each election, and risks America’s further slide towards authoritarianism.

The shutdown of 2013 is no excuse for a shutdown this year. 2013 involved divided government, with Democrats controlling the White House and Senate but Republicans holding the House.  Now Republicans have all three, with only the obstructionist tactic of a filibuster an option for the Democrats.

To appreciate this difference, imagine two different two-seater airplanes.  The first plane has twin sets of controls, so that both co-pilots share the power of flying the plane.  The other plane has just one set of controls, so that it is clear that one seat is the pilot’s and the other is the passenger’s.  The 2013 shutdown was like the first plane crashing because the two co-pilots couldn’t agree on how to fly the plane.  In 2018, a filibuster-induced shutdown is like the second plane crashing when the passenger tries to grab the pilot’s controls because of disagreement with how the pilot wants to fly the plane.

Some might say that the filibuster is an instrument to give the second plane’s passenger some navigational authority.  Even so, it does not change the fundamental truth that – unlike in the first plane – the role of pilot and the role of passenger remain clearly distinct.  If push comes to shove, the single pilot gets to fly the plane, and the passenger must yield in disagreement.  The passenger does not get to crash the plane by trying to take over the role of pilot.

In a two-party democracy, the parties compete for turns as pilot and passenger.  For some flights, the Democrats will pilot the plane, because that’s what the voters want.  But for other flights, the Democrats must let the GOP have its turn in the pilot’s seat.  Sometimes, divided government causes both parties to be co-pilots for particular fights.  But when government is not divided, the situation reverts to that of pilot and passenger, with each party in the role that the voters for now  have assigned to it.

The filibuster gives the passenger some input into each journey the plane will take.  If the pilot wants one destination and the passenger another, the two may need to compromise in order to get anywhere, given the passenger’s power to use the filibuster to block what the pilot wants to do.  But the passenger, recognizing that this particular flight is but one in the ongoing series of taking turns, must not use the filibuster to cause a crash that prevents or impairs the plane’s future flights.  A filibuster that causes the government to shut down, failing to pay its employees (or to default on the national debt), just because the filibustering party disagrees with the governing party over some issue of public policy – health care, the environment, immigration, or whatever – is tantamount to the passenger crashing the plane in disagreement with where the pilot wanted to go on a particular flight.

Democrats might protest that protecting the Dreamers makes this filibuster-induced shutdown exceptional and essential. But protecting Dreamers is still an issue of policy: what direction the government should take in this particular flight.  However important, it does not permit the passenger to crash the plane. If this year Democrats cannot use the filibuster to convince Republicans to protect the Dreamers, they need to convince the electorate to put their party in the pilot’s seat.

Moreover, if a Senate minority is allowed to shut down the government by filibuster, the voters will not tolerate America’s democracy much longer.  Even after putting one party in charge of both houses of Congress and the presidency, the voters find that Washington remains dysfunctional.  That’s a recipe for getting rid of the system altogether.

Trump promised to fix Washington by blowing up the whole place if necessary.  Many are deeply troubled by Trump’s authoritarian tendencies.  But if electing Trump does not cure Washington’s dysfunction, the electorate’s next response may be Trump 2.0, and that would be even more authoritarian.

Thus, if the Democratic Party cares about small-d democracy, as it professes, then it needs to act consistently with the role of the minority in a competitive two-party system.  It needs to win elections, not shut down the government because it disagrees with the majority party over the direction the government currently should take.