Tag Archives: one person one vote

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.

 

An Attack on Cities

It is not news that demographic data poses long-term problems for the GOP–at least unless the party returns to its more responsible roots. For a decade or more, pundits have pointed to the disaffection of Latinos and other immigrant populations, the continuing Democratic self-identification of African-Americans, and the reduced religiosity and increasing social liberalism of younger Americans–characteristics that correlate with voting Democratic.

What has been less remarked-upon is the widening urban/rural political divide. In our familiar red/blue political map, cities are dots of blue in even the reddest states. And in America, as elsewhere, people are increasingly moving to the cities.

The political dilemma this poses for Republicans is obvious. Thus far, the party has responded with efforts to make it more difficult for poor people and minorities to cast their ballots, and (in states they control) with aggressive gerrymandering  aimed at diluting urban political power. (And yes, Democrats, in states they control, gerrymander too.)

Now, Ed Blum–who brought Shelby County v. Holder, the case that resulted in the gutting of the Voting Rights Act– is asking the Court to redefine “one person, one vote.”

Is Congress’s job to represent people, or just voters? Currently, all states are required to redraw their political boundaries based on the Census’s official count of total population every 10 years, which includes minors and noncitizen immigrants. But the Texas plaintiffs argue that states should be allowed to apportion seats based on where only U.S. citizens over 18 years of age live…..

A move toward counting only eligible voters, as logistically difficult as it may be, would drastically shift political power away from the urban environs with minorities and noncitizens, and toward whiter areas with larger native-born populations. That’s bad news for Democrats: Of the 50 congressional districts with the lowest shares of eligible voters, 41 are occupied by Democrats (nearly all are Latino-majority seats). Meanwhile, of the 50 districts with the highest shares of eligible voters, 38 are represented by the GOP.

Those “logistic difficulties” would be substantial, with opportunities for all sorts of mischief; the blog FiveThirtyEight notes that calculating the number of eligible voters would “require statistics that no one has.” (In a rational world,  Evenwel v. Abbott would never have made it to the Supreme Court for that reason alone.)

What this lawsuit really  highlights is that the partisan division between today’s Republicans and Democrats is also geographic, with Republicans primarily rural and Democrats, urban. (Of course there are Republicans in cities and Democrats on farms, but they are the outliers.) The problem for the GOP is that the U.S. population is increasingly urban–city dwellers vastly outnumber rural folks, and movement into metropolitan areas continues to accelerate. The problem for Democrats (and city dwellers) is that state governments are still largely controlled by rural interests, thanks to legal structures originally created for an agrarian nation.

There are plenty of flaws in the arguments advanced in Evenwel–practical, democratic and legal–and election law experts are quite properly focusing on those flaws. But at its root–and at the root of the increasingly hysterical attacks on “elitists” and “intellectuals” and “progressives”–is rejection of the values and diversity and complexity that characterize modern urban life.

That hysteria may attract insecure folks for a while, but over the long haul, resentment isn’t a viable political strategy.