A Thoroughly Broken System

If I were to describe to you a country where a candidate could get millions fewer votes than his opponent and still win the country’s highest and most powerful political office; where one party could win 54% of the votes in an election but lose two thirds of the seats; where representatives of a mere 11% of the population have veto power over every piece of national legislation; where, depending on where you live, your vote for one of the two houses of the national legislature might count 50 times more than another voter in another state; where the requirements to actually vote depend on where you live; where you receive special voting privileges depending on how old you are and where you live; where, without knowing it, you might be purged from being eligible to vote because you may not have voted in the last national election; where, depending on where you live, you might have to wait in line for over five hours to actually cast your ballot; where, depending on where you live, you may have no voting representation in the national legislature; where, depending on where you live, your mail-in ballot that reaches its destination after election day may or may not be counted; where the highest court in the land rules that you must risk your life to actually vote rather than allow a safer option; where, for almost the entire history of the country, one party or another has ensured that whole classes of people were disenfranchised; where the current unpopular president rants and raves about fictional rampant voter fraud and suggests the next election needs to be cancelled; if I were to describe a country like that, you would probably think that I was talking about some tin-pot dictatorship or some relic of colonialism, but certainly not a functioning democracy. But that country is America.

American democracy is fundamentally broken. The source of much of our trouble goes back to the Founders themselves who actually feared democracy, considering it the equivalent of “mob rule”. Alexander Hamilton openly advocated against “the imprudence of democracy” while Roger Sherman thought “the people…have as little to do as may be about the government”. Instead, as my conservative friends will probably once again remind me, the Founders built a republic and not a democracy. The Founders did not include the fundamental right to vote in the Constitution and largely left the decision on who qualifies to vote up to the individual states. In addition, the principle institutions the Founder’s built to thwart the popular will were the Senate and the Electoral College. With those enormous impediments in place, it took over 80 years for all blacks to get the legal right to vote and another one hundred years on top of that to make that legal right effective in reality. It took around a century and a half to allow women’s suffrage. It took nearly two centuries for indigenous Americans and young adults who were old enough to die for our country to also receive the franchise. And it took over a century and a quarter to allow the direct election of senators by popular vote.

The republic that the Founders did build established a white, racist, propertied patriarchy and its legacy still haunts us to this day. In fact, the entire history of this country could be viewed as requiring the dismantlement of the electoral system the Founders set up in order to achieve the language of freedom and equality embedded in the Declaration of Independence. The Roberts Court and the gradual realization from Republicans that they can only win elections by shrinking the electorate has set the process of democratization back over the last two decades. Repairing that damage and restoring our democracy will take both enormous effort and forcing Democrats to ruthlessly use the power they do gain to implement the structural changes necessary to ensure progress that will be long-lasting. Some of those changes are currently realistic; others will take longer but the need to fight for them is just as important.

The obvious starting point for democratic reform comes at the ballot box right now. Democratic political power in the individual states can stop the partisan gerrymandering, eliminate restrictions on voting such as voter ID and early registration requirements, and generally extend the franchise. Similarly, a Democratically-controlled Congress and White House can finally pass HR1 which would force states to provide automatic as well as same-day voter registration; restore the Voting Rights Act; require at least two weeks of early voting; eliminate extreme partisan gerrymandering by requiring states to use independent redistricting commissions; improve election security including the elimination of paperless voting machines; and provide more transparency in campaign finance. Of course, this would probably require the Senate to eliminate the filibuster, even if only for voting rights legislation. In addition, not only it is unclear whether all these changes in HR1 will survive legal challenges from the current Supreme Court but they would also only apply to national elections. States would still be free to gerrymander for statewide legislative races.

Another important step a Democratically-controlled Congress and White House could take to mitigate the current inequity in the US Senate would be to add the District of Columbia and Puerto Rico as new states. This would also finally fully enfranchise the citizens of the District who have lived in this democratic limbo for far too long. In addition, citizens in other US territories could also be given expanded voting rights. Another option would be to make election day a national holiday. Finally, Democrats could institute “universal civic duty voting”, making voting the equivalent of something like jury duty. As supporters of such a system describe it, “In calling for what has been known as mandatory attendance at the polls (the phrase makes clear that no citizen would be forced to vote for anyone against his or her will), and might now, with the spread of mail voting, be called mandatory participation in elections, we hope to underscore that rights and duties are intimately related…We propose, for example, that all who have a conscientious objection to voting and all who present any reasonable excuse for not doing so would be exempted from the obligation and any penalty. Voters would be free to return a blank or spoiled ballot, and a ‘None of the Above’ option would also be included”.

The above assumes Democrats win the House, the Senate, and the White House this November. If they don’t, then it’s time to play hardball with Republicans gerrymandering schemes. Assuming Democrats still hold the House, Democrats can still wield enormous influence over state gerrymandering efforts if they are willing to use it. As Lee Hamilton, William S. Cohen, and Alton Frye have opined, “The most direct path to resolving the perpetual challenge of gerrymandering lies with the House. Quite simply, it can refuse to seat a state delegation achieved through excessive gerrymandering. It has that power. And it can use it to create a process that would prevent hyperpartisanship in setting congressional district lines”. David Frum has proposed a less extreme version of the same idea, saying Democrats should draw both neutral and extreme partisan maps in states that they control after the 2020 census. If Republicans continue with their partisan gerrymanders in, say Michigan and Wisconsin, then Democrats should respond in kind in two states of their own. If the GOP draws neutral maps, so will the Democrats.

While not specifically addressing the negative effects of extreme gerrymandering in the House, a myriad of proposals for reforming the House focus on creating more competitive districts, expanding the diversity of the body, and potentially restoring the real act of legislating rather than just voting up or down on bills that have been negotiated by party leaders in the back room. The core of all these proposals is to expand the number of members in the House, with the new total ranging anywhere from around 600 to 1,600. A smaller congressional district should, in theory, lower the cost of election thereby opening up the process to many more contenders as well as improving constituent contact and service.

An additional twist to this expansion is the introduction of multi-member districts elected with ranked choice voting. The idea here is to give representation to the party whose candidate may win a substantial percentage of the vote but end up with no representation at all because of the current winner-take-all system. Take Massachusetts, for example, with its nine congressional seats which are currently all held by Democrats despite Republicans getting over 30% of the total vote. Dividing the state into three multi-member districts would give Republicans around four or five members of the new thirteen member Massachusetts’ delegation, based on existing voting patterns in ranked choice voting. That would more accurately reflect the actual preference of all the state’s voters. Of course, asking current members of the House to dilute their own power is problematic at best. But when every major piece of legislation since the ACA has essentially been presented to both the House and the Senate as a fait accompli back-room deal, with virtually no hearings and little or no deliberation, radical change would seem to be in order.

While all these potential changes would make our country more democratic, they still don’t really address the fundamental core anti-democratic structures created by the Founders — the Electoral College and the US Senate. Fixing these legacies of slavery and racism currently seems almost impossible through the constitutional amendment process, which requires passage by two-thirds of both houses of Congress and then three-quarters of the states. That doesn’t mean the Democrats shouldn’t even bother to try to pass such amendments, but there are other work-arounds.

The National Popular Vote Interstate Compact is designed to make the Electoral College moot by getting states that comprise 270 Electoral College votes to award their electors to the winner of the national popular vote. The Compact already has had states representing 196 electoral votes sign on. It is hard to imagine how our presidential politics will change if the Compact ever reaches its goal. Rather than focusing on a handful of swing states, candidates can farm for votes in every nook and cranny of this country, with each vote worth the same as any other vote in any other state. And rather than policies being driven by a handful of special interests in a handful of states, candidates will be far more likely to focus on policies that expand the general welfare of the country as a whole.

That leaves the conundrum of the US Senate. One study of current demographic trends shows that by 2040, 70% of the population will have just 30 seats in the US Senate, leaving the majority of Americans subject to the tyranny of the minority. Eric Orts has a rather bold proposal to resolve this imbalance. Orts proposes that every state is guaranteed at least one Senator but more populous states would be given more Senators based on their share of the total population. Says Orts, “Start with the total U.S. population, then divide by 100, since that’s the size of the current, more deliberative upper chamber. Next, allocate senators to each state according to their share of the total; 2/100 equals two senators, 3/100 equals three, etc. Update the apportionment every decade according to the official census…Using 2017 census estimates as a proxy for the official one coming in 2020, the Rule of One Hundred yields the following outcome: 26 states get only one senator (having about 1/100 of the population or less), 12 states stay at two, eight states gain one or two, and the four biggest states gain more than two: California gets 12 total, Texas gets nine, and Florida and New York get six each…In the new allocation, the total number of senators would be 110”.

Constitutional scholars will point to Article V of the Constitution which clearly states “that no state, without its consent, shall be deprived of its equal suffrage in the Senate” and say that Orts’ plan will not pass muster with the Supreme Court. But, as Orts points out, Article V refers to constitutional amendments. The changes he proposes would be done by statute, which he names the Senate Reform Act. Orts also adds, “the states, through the various voting-rights amendments-the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth-have already given their ‘consent’ by directing Congress to adopt legislation to protect equal voting rights, and this delegated power explicitly applies to ‘the United States’ as well as the states. The Senate Reform Act would simply shift seats according to population. No state or its citizens would lose the franchise”. In addition, as Lawrence Tribe points out, those later voting rights amendments should take precedence over the earlier, original constitutional text.

Another legacy of the current Senate structure is the long-standing domination of the Supreme Court by conservatives, culminating in Merrick Garland’s stolen seat. The current Roberts Court has been notoriously hostile to voting rights and it seems certain that the current Court would reject Orts’ plan. But fixing our democracy appears to also now mean fixing the Supreme Court. While the current talk is all about court-packing, and rightfully so considering what happened to Garland, a different and more effective solution may lie in actually reducing the power of the Court.

As Ryan Doerfler and Samuel Moyn note, one idea is to revive a notion from the Progressives of the 1920s. They write, “A proposal, advanced by 1920s progressives among others, to require six or seven justices (rather than the current five) to agree before declaring a federal statute unconstitutional functions similarly. Such a ‘supermajority’ requirement would have no explicit partisan benefit for one team or the other. What it would accomplish instead is to shift significant power away from the appointed, life-tenured judiciary and to the political branches-Congress and the president…a supermajority rule would ensure that five justices could not advance a reactionary agenda or thwart progressive change”. Perhaps instead of making that supermajority apply to all federal statutes, it might be limited to voting rights issues, as some have suggested with the filibuster. The beauty of reducing the Court’s power is that it will probably not encourage the escalating tit-for-tat response that court packing would. And if the Court resists such a reduction of its power, then court-packing would be the fallback position, a threat the Court should be made well aware of.

Democrats will have their hands full rebuilding this country if they win in November. Between a decimated economy, the pandemic itself, and the destruction of the administrative state, especially at the State and Justice Departments, it will take enormous focus and effort to get the country back on its feet and back on track. But Democrats can not forget to use their political capital for democracy reform. Such reform will be good for Democrats but, more importantly, good for the country. And it will hopefully finally prevent another tin-pot dictator like Trump being handed the most powerful position in the country with a minority of the vote and then sycophantically supported by a Republican Senate also representing a minority of Americans.

Originally published at https://thesoundings.com on August 12, 2020.

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