Tag Archives: Democracy

Republicans Ask: Should The Majority Rule?

Last month, in the wake of the Supreme Court’s refusal to protect its previously articulated principle of “one person, one vote” by limiting the degree to which Congressional districts can be dishonestly drawn, Talking Points Memo published an essay about the GOP’s embrace of an explicitly anti-democratic philosophy.

Josh Marshall identified the issue, and emphasized that it is separate from the Founders’ well-documented concern about the “passions of the majority.”

Much of American constitutionalism is bound up with protecting the rights of minorities against untrammeled majorities. Here though, I’m focused on something distinct and separate: the creation of anti-majoritarian ideologies, fully articulated arguments for why democratic majorities should not in fact, as a matter of principle, hold political power.

Marshall quotes Scott Walker, the former (sleazy) governor of Wisconsin, who now heads up a GOP committee defending gerrymandering (because of course he does); Walker claims that what Democrats call “fair” maps aren’t really fair because they advantage urban areas where more voters live. He argues that counting each vote equally gives urban areas “too large an influence.”

This is a bracingly candid statement of the position: We need to reevaluate how we define “fair”. Because if “fair” means whoever gets the most votes (i.e., proportional representation) then Republicans are at an inherent disadvantage “because of their national popular vote edge.” I don’t think my explication really goes beyond Walker’s statement really at all: what Democrats call “fair” is the candidate with the most votes winning.

As Marshall says,

Beyond the opportunism and the fact that city vs non-city has a deeply racial dimension, at a basic level Walker wants to see city and non-city as two contending entities which deserve to contend on equal terms. But of course these concepts, city and non-city or city and rural areas have no existence in American law. Nor does the idea even have a factual grounding. There are plenty of Republicans in cities and Democrats outside the cities. It is simply a broad brush way of capturing a political division in American society which Walker – and a growing number of Republicans – has formalized to explain why laws and districts should be changed to ensure that his preferred candidates win even when they get fewer votes.

Given the fact that twice in the last 16 years, the candidate who lost the popular vote–in the case of Trump, massively–became President, Americans have increasingly focused on the anti-democratic elements of our Constitutional system.

Thanks to the Electoral College, and population shifts over time, it currently takes four urban votes to equal three rural votes.

The composition of the Senate is equally undemocratic: every state has two Senators, irrespective of the state’s population. Today, a majority of Americans live in nine states that collectively have 18 votes in the Senate. The rest of the country–with a minority of the population– has 82.

These anti-democratic elements have been around a long time. What’s new, as Marshall points out, is that “the big state/small state divide has seldom lined up so clearly with the broader partisan division in the country.

All of this is part of the central dynamic of our time: Republicans increasingly turning against majority rule and a widely shared franchise because majorities, when not sliced up into gerrymandered districts or state borders, increasingly favor Democrats. That’s why we have voter ID laws. It’s why we have resistance to early voting, felon voting and basically everything else that doesn’t keep the voting electorate as small as old and as white as possible. Most of these strategies have focused on things like election security, or cost or convenience or whipped up fears about voter fraud. But that’s starting to change. The explicit embrace of special advantages for Republicans outside major urban concentrations, the explicit embrace of majority rule not being the essence of electoral fairness, is coming to the fore.

Defenders of anti-majoritarianism protest that we are not and never have been a democracy; we are a representative republic. That’s accurate as far as it goes. Certainly, as Marshall notes, the Founders had a well-grounded concern that minority rights would suffer if popular majorities were left unrestrained. Even if we must close our eyes to some of the less laudable concerns that prompted creation of the Electoral College and the composition of the Senate, the protection of minority opinion justifies a degree of anti-majoritarianism.

The question is: how much?

The tension between individual rights and majority passions–the need to find the proper balance between the two– has been a constant theme throughout American history.

Too much majoritarianism threatens individual rights. Too little–as when a minority is empowered to elect candidates rejected by the majority– threatens government legitimacy.

Persistent rule by the minority is an invitation to revolution.

 

 

 

The Court Betrayed Us: What Can We Do?

Talking Points Memo summed up the dilemma for American democracy in the face of the Supreme Court’s dishonest, cynically partisan decision.

The chief’s opinion in Rucho v. Common Cause doesn’t withstand even basic scrutiny. The court’s majority decided that partisan gerrymandering disputes are “non-justiciable” — that is, the courts can’t intervene in them — because, essentially, courts aren’t equipped to come up with a standard to determine when gerrymanders go too far. Never mind that the lack of what the court calls a “judicially manageable standard” appears to have literally never held the justices back before on any other issue. Never mind also that, as the Brennan Center’s Tom Wolf has pointed out, five different federal courts, relying on the work of respected political scientists, have had little trouble coming up with manageable standards to strike down partisan gerrymanders in Wisconsin, North Carolina, Ohio, Michigan, and Maryland. To Roberts, it’s all a bunch of “sociological gobbledygook.”

It’s hard not to see Rucho as a direct relative of past Roberts court rulings that likewise crippled our democracy, like the Shelby County decision gutting the Voting Rights Act, the Citizens United decision striking down campaign finance rules, the Crawford case upholding voter ID laws,  and the Husted opinion allowing purges of voter rolls.

So the Court isn’t going to protect “one person, one vote. The Court leaves in place a tactic that, according to the Cook report, has created today’s political reality: 19 out of 20 voters reside in a non-competitive Congressional District.

That’s where we are. The urgent question is: what do we do?

The easy answer–which is by no means easy to accomplish–is to elect Democrats. Everywhere. City, State and federal offices. That’s not because Democrats are angels, or unwilling to play the gerrymandering game–one of the cases before the Supreme Court was from Maryland, which had been redistricted by Democrats for Democrats. But for a number of reasons (including the fact that Republicans have been much better at partisan redistricting and by far the most numerous beneficiaries of it), Democrats have made fair redistricting an important policy commitment.

If Democrats take the Senate, the House bills Mitch McConnell refuses to hear will pass–Including the all-important H.R.1, the sweeping democracy reform bill that would expand voting access. fix our campaign finance system, and make redistricting fair and transparent. Without a Democratic Senate, however, H.R. 1 won’t pass.

What else can we do?

A local answer that is “doable” in some states is to mount a referendum. These have been very successful in states where such mechanisms are available. Indiana, unfortunately, is not one of those states.

Long-term, what we need in Indiana is an amendment to the state’s constitution. That document currently places responsibility for redistricting with the state legislature–a  provision that creates an obvious conflict of interest. It places decision-making in the hands of those whose interests will be affected, allowing lawmakers to choose their voters rather than the other way around.

The problem is, efforts to amend the Indiana Constitution–ideally, to provide that redistricting will henceforth be the responsibility of a nonpartisan or bipartisan commission–must originate with that same conflicted legislature.

I invite my more creative lawyer and political friends to weigh in, but after much “mulling over” (and not an inconsiderable amount of alcohol), here’s the best advice I can come up with for our not-as-Red-as-people-think Hoosier state:

We need a “movement.” (I’m aspiring to Hong Kong sized….)

Furious Hoosiers can build on the coalition already in place under the auspices of Common Cause and the League of Women Voters. We should make lots of noise;  we should endorse candidates for the General Assembly who commit to support a constitutional amendment addressing gerrymandering; and we should “call out” legislators who sabotage efforts at representative government.

I realize it won’t be easy. Common Cause has been fighting this battle for nearly 20 years, and Indiana is still the 5th most gerrymandered state in the nation. But over that time, many more people have come to understand the problem. What the forces of change have going for us now is anger–anger at the corruption of Trump and his Administration, anger at the Vichy Republicans who put party before country, and anger at a partisan Court that rewards Mitch McConnell’s willingness to cheat.

However energized the anti-gerrymandering movement, however, there is no escaping the conclusion that the first order of business is turnout in 2020.

Indiana was blue in 2008, partly because a lot of people who didn’t often vote, did. And as I have pointed out before, even Indiana’s extreme gerrymandering won’t protect the GOP super-majority if we have massive turnout. 

A tsunami of votes in 2020 can “jump start” a grass-roots effort to make “one person, one vote” a reality.

If that fails, so does democratic self-government.

Happy 4th of July.

 

Majority Rule And The Electoral College

I recently participated in a really interesting and informative conference at Loyola Law School in Chicago. (I posted my presentation on Sunday.)The conference title was Democracy in America. Although the subtitle was “The Promise and the Perils,” most presentations were pretty tightly focused on the perils.

Identification of those perils centered mostly on the “usual suspects”: gerrymandering, the Electoral College, vote suppression…But thanks to the participation of some really first-class legal scholars, the discussion had some interesting twists.

The law professors and political scientists who discussed the Electoral College were in agreement that a constitutional amendment eliminating it simply won’t happen; they were equally negative on the likelihood of red states ever joining the Popular Vote Pact (and noted that it might not be able to survive a constitutional challenge).

Obviously, the Electoral College as it exists today is dramatically different from the mechanism as it was originally conceived and even as it was later amended.

According to law professor Edward Foley, who has a book coming out on the subject later this year, the changes made to the College by the Twelfth Amendment in 1804 rested on the assumption that the candidate who won a majority of the popular vote would be elected. Those who crafted the Amendment failed to foresee the emergence of third party candidates whose presence on the ballot often means that the winner of a given state doesn’t win a majority, but a plurality of the vote.

Foley favors a rule that would award electoral votes only to candidates who receive a majority of the votes in that state. (He didn’t say how the votes of that state would be apportioned in cases where the winning candidate didn’t meet that standard—but there are a number of possibilities.)

Ranked-choice voting would eliminate the problem.

Even more intriguing, there is evidently a lawsuit pending that challenges “winner take all” allocations of state electoral votes. Winner take all (which is in effect in all but two states) awards all of a state’s electoral votes to whoever wins, by whatever margin. It’s why Democratic votes for President don’t count in Indiana and Republican votes don’t count in New York—even if the margin is incredibly thin, the candidate who comes out on top gets all the electoral votes. If the votes were apportioned instead—if a winner of 51% of the popular vote got 51% of the electoral vote, and the candidate who got 49% got 49%, it wouldn’t just be fairer. It would encourage voters who supported the “other” party in reliably red or blue states to vote, because–suddenly– that vote would count.

Last February, a coalition of law firms led by the League of United Latin American Citizens (LULAC), and David Boies of Boies Schiller Flexner LLP, filed four landmark lawsuits challenging winner-take-all. According to the press release,

By magnifying the impact of some votes and disregarding others, the winner-take-all system is not only undemocratic, but it also violates the Constitutional rights of free association, political expression, and equal protection under the law. These suits aim to restore those rights nationwide.

The suit was filed in four states–two red, two blue. Two have dismissed the complaint (the California dismissal has been appealed to the 9thCircuit), but it is still “alive” in two others.

States have the authority to allocate their electoral votes as they see fit, but if some states allocated and others did not, the results would be even less likely to result in the election of the person who actually won the most votes nationally. This case—if successful—would require all states to allocate their electoral votes.

It would help.

Assaulting Democracy

The warning signs are everywhere.

Governing Magazine has added to the evidence that America is losing even the pretense of democracy.

In the first several years after the Affordable Care Act (ACA) helped states make more low-income people eligible for Medicaid, it was only Democratic-led states that took the federal government up on its offer. Republicans have since warmed to the idea — but only on their own terms, and sometimes even if it means going against voters’ wishes…..

While some Republicans in Georgia, Oklahoma and Wyoming are exploring the possibility of Medicaid expansion in their states, Idaho and Utah are undoing ballot measures that voters passed in November to expand Medicaid.

In Utah, the Republican governor responded to the success of a ballot initiative expanding Medicaid by signing a bill that would only cover people earning up to the federal poverty line; it would also cap enrollment if costs exceed what’s expected.

But the terms of the ballot measure, which passed with 53 percent of the vote, were to expand Medicaid eligibility to people earning up to 138 percent of the federal poverty line.

Utah has to get federal approval of this law, and similar measures were not approved during the Obama administration. The Trump Administration, of course, is hostile to pretty much everything the federal government does, so it might very well allow what is a clear repudiation of the will of the voters in Utah.

It isn’t only Utah.

Idaho is also eyeing a rollback of its citizen-led Medicaid expansion ballot measure. The initiative won handily, with 61 percent of the vote….But legislation to void the initiative is currently making its way through the Idaho statehouse.

And many of you will recall that in 2016, Maine voters approved Medicaid expansion, but the state’s certifiable nut-case then-governor, Paul LePage, prevented it from taking effect.

Whatever one’s position on Medicaid expansion, these are truly breathtaking examples of legislative and administrative chutzpah. The citizens of these states voted on an issue before them; in essence, they gave instructions to the people who are presumably in office to represent them. And those people simply ignored them.

This is not unlike Trump’s decision to declare an “emergency” that would allow him to defy a Congressional vote. Even if a member of Congress believes the wall should be built, he or she should be appalled by a Presidential action that strikes at the very heart of the Constitution’s separation of powers. It ignores as irrelevant the constitutional provision that vests decisions about spending in Congress, a provision that–before now–has constrained lawmakers and administrators alike.

Congress said no. That should have been the end of it. The President’s “emergency” is not only bogus, it ignores the clear division of authority mandated by the nation’s charter.

Yet every single Indiana Republican Representative voted against the House Resolution to reverse that dangerous attack on a fundamental element of American governance, placing the interests of their political party above both the good of the country and fidelity to their oaths of office.

Without the rule of law–without lawmakers and public officials who are willing to accept the decisions of voters whether they like those decisions or not; without lawmakers who are willing to insist upon compliance with the Constitution even when it is their party that is breaking the rules–we don’t have a democracy or a republic or even a legitimate government.

We have a banana republic.

They Aren’t Even Pretending Anymore

For the past several years, political scientists and pundits have published articles bemoaning the erosion of democracy and democratic norms, and Americans who follow government and politics have nodded in measured agreement.

I say “measured” because we still retain the trappings of democracy–campaigns, elections, the free press that so annoys Donald Trump. But this year, we are coming face-to-face with a reality we’ve been avoiding: our elections are mostly a sham, and legislators–who haven’t felt the need to reflect the will of those who voted for them for quite some time–no longer are bothering even  to pretend that they are “representative.”

David Leonhardt has noticed.

In November, the people of Utah voted to provide health insurance for about 150,000 state residents who lacked it. Last week, Utah’s legislators overruled their own constituents and took away insurance from about 60,000 of those 150,000 people.

The legislators claimedthey were trying to save money, but that’s not a credible rationale: The federal government would have covered the bulk of the cost. The true reason — which the legislators weren’t willing to admit publicly — was a philosophical objection to government-provided health insurance.

Utah’s turnabout is the latest worrisome exampleof politicians rejecting the will of voters.

The offending politicians have been mostly Republican, as they are in Utah. “You see a rising, disturbing trend here of equivocation, if not worse, in the commitment to democratic norms on the part of a growing number of Republicans,” Larry Diamond, a Stanford University democracy expert, told my colleague Ian Prasad Philbrick. “Is this what the Republican Party wants to be? The anti-democracy party?”

Leonhardt provides examples from Idaho, Maine and Michigan, and notes that, In Missouri,  legislators are attempting to subvert a ballot initiative that would reduce gerrymandering.

In Utah, the legislature partly overturned a new law allowing medical marijuana.

These examples involved lawmakers ignoring the results of state referenda. Indiana doesn’t allow referenda, but our lawmakers have been equally willing to ignore the clear wishes of their voters.

This year, both the Indiana and Indianapolis Chambers of Commerce have made passage of bias crimes legislation a priority. Business and civic leaders throughout the state formed an organization, Forward Indiana, to support the bias crimes bill. The governor has asked the legislature to pass it. In a poll of Hoosiers on the issue, 84 percent of Democrats, 75 percent of independents, and 63 percent of Republicans supported passage of a hate crimes bill focused on marginalized Hoosiers.

The Senate GOP eviscerated the measure, gutting the language that made it legally effective. All indications are that the House–which, like the Senate, has a Republican super-majority with a history of homophobia–will concur.

If Indiana lawmakers actually represented their constituents, passage would have been a no-brainer. But thanks to gerrymandering, Indiana lawmakers feel free to ignore the wishes of the public they ostensibly serve, and they do so with some regularity.

As Common Cause has explained, we have a system in which the legislators choose their voters rather than a truly democratic system in which voters choose legislators. And until that  changes, lawmakers will continue ignoring We the People.

Like the lawmakers in Utah and other states, they don’t even bother to pretend any more.