Democracy Needs Fixing! 

The 2020 U.S. elections have shown that the country’s institutions are in dire need of reform. These past months have exposed the weakness of a system that has relied on acceptable norms and responsible behavior, both of which have been in short supply from much of the leadership.

Elections should represent the will of the people but partisan politicians continue to manipulate the system to entrench themselves and their party in power. Gerrymandered legislatures have rigged the rules! Massive voter suppression, mostly in southern states, has resulted in the illegal purging of minorities from electoral rolls, leading to their deliberate disenfranchisement (see VRA section).

A record number of Americans voted early, by mail, or braved 8 to 10 hours in long lines to cast their ballots amid a pandemic that has killed nearly a quarter million of their fellow citizens. They did this while their own government and courts put every impediment in their way, slowing the mail and enforcing rigid deadlines on when ballots must arrive to be counted. 

Voting became a struggle with GOP legislatures shutting down polling stations (for no reason other than to deter citizens from casting their ballots) and making it more challenging in heavily crowded metros to find a polling place to vote or a drop-box to secure it!

In the weeks leading up to November 3, the president warned (sans evidence) that mail-in ballots were suspect and that, if he did lose, it would be because of voter fraud. He declined to commit to a peaceful transfer of power and, more than two weeks after losing the election, has still not conceded! 

 

This breaching of traditions demonstrates that the Biden administration must prioritize both institutional reform as well as reform of norms and practices. Most importantly, key provisions of the Voting Rights Act (gutted by a 2013 Supreme Court ruling) must be restored. 

The Electoral College

Every election year, pundits call for abolition of the Electoral College. Like the Senate, it over represents the views of relatively small numbers of people, but should it be gone? See Brookings essay below where author Darrell M. West urges dropping the Electoral College and switching to “the direct election of presidents” before there is “a genuine constitutional crisis.” 

Through the Electoral College (and the Senate), the 35 smaller states have “disproportionate power to choose presidents and dictate public policy,” writes West. Each state has two Electoral College votes regardless of population size, plus additional votes to match its number of House members. 

The Electoral College’s rural bias heightens the importance of largely white, midwestern battleground states. Therefore, a vote cast for president in Wyoming counts nearly four times as much as a vote cast in California! This is why the GOP (with fewer votes than Democrats) twice won the White House (in 2004 and 2016).

There is an easy fix! Currently, 15 states with 189 electoral votes have set into state law a policy to give all their electoral votes to the national popular vote winner. Called the National Popular Vote Compact (NPV), this policy will go into effect if enough states join to constitute a majority of Electoral College votes. Right now, the NPV is only 74 electoral votes short of a majority (see article below). It needs approval by a majority vote in Congress to be constitutional — far easier than a constitutional amendment! 

Amending the Constitution requires a vote of two-thirds of both the House and Senate, followed by ratification by three-fourths of state legislatures. It is a huge challenge to pass a constitutional amendment at the best of times but, in this polarized atmosphere, it would be impossible!

The Senate

Like the Electoral College, the Senate gives disproportionate power to older, whiter, more rural, and more conservative interests. But it’s much harder to fix and has resisted reform! 

Unlike the House of Representatives where each state’s representation is based on population — a large state like California has 53 reps but smaller states like Vermont and Delaware have one each — the Senate continues to have two senators represent each state. Hence, California with a population of 40 million has two senators as does North Dakota and Wyoming with populations of less than a million each.

It is so unbalanced that, by 2040, academics predict, the 15 most populous states will be home to 67 percent of Americans, yet they will be represented by only 30 percent of the Senate! 

There are some Senate reforms that do not need constitutional amendments. For instance, abolishing the filibuster super-majority only needs a majority vote in the Senate; next, admitting the District of Columbia and Puerto Rico as states needs majority votes in both the House and Senate. (This last would substantially reduce the Senate’s rural and white voter bias!)

The following reforms would need constitutional amendments, such as, switching the vexed issue of judicial confirmations from the Senate to the House, not requiring Senate approval for all legislation, and (more drastically) turning the Senate into a body that allocates seats by state population size. (This last reform would require the approval of every state!)

The representational biases of the Senate make it hard to reduce the systemic and unequal treatment of minorities. And, yet, there is no credible solution to fix it within the constitutional framework. The GOP has held the Senate for 10 of the past 20 years. The Democrats have to start winning state houses and the Senate itself to make even small changes happen!

There are two Senate seats in Georgia going into runoff elections, January 5. If the Dems win those, they can wrest Senate leadership away from the GOP! It is the only way to ensure that Biden will not be hampered and obstructed at every turn as Obama was! 

Redistricting and Redmap!

More than 50 million Americans live in a state in which one or both chambers of their state legislature is GOP-controlled even though Dems won more votes in 2018. How did this happen?

Every state legislature and congressional district is redrawn every 10 years — after the nationwide census — to account for population changes. Known as redistricting, legislatures draw these lines in almost every state. After the Democrats (with Barack Obama heading the ticket) swept elections in 2008, Republicans identified devious new tactics to misuse redistricting!

A $30 million plan — known as Redmap — devised by conservative strategist Karl Rove and others, identified 107 key state legislative seats across 16 states that would give the GOP complete control of the process in the most important swing states: Florida, Michigan, North Carolina, Ohio, Pennsylvania, and Wisconsin. 

The plan was to flood state races with “dark money” made possible by the Citizens United ruling (see next section) in order to reshape state legislatures where the power to redistrict is held. The GOP won those state houses, drew maps to build themselves a “voter-proof firewall,” and voilà: in the 2012 election they kept the House of Representatives despite losing the overall vote by 1.4 million! 

They had infamously “insulated the party and its wealthy donors from popular democracy!” See article, ‘Gerrymandering On Steroids': How Republicans Stacked The Nation's Statehouses (WBUR) below.  (Note that the GOP also won the House of Representatives in 2014 and 2016!)

These devious GOP tactics predate Trump! The real Machiavelli here is perhaps Senate Majority Leader Mitch McConnell (R-Kentucky), the longest-serving leader of Senate Republicans in history. He is ably supported by conservatives brimming with clever (barely legal) stratagems! 

Nevertheless, the Dems turned it around, winning the House in 2018 and keeping it in 2020. The main reasons are: they registered thousands of new voters and the need to defeat Trump made the 2018 and 2020 elections existential. Dems, who are usually not motivated enough to cast their ballots in every election, came out in droves! 

Meanwhile, citizen initiatives proposing redistricting reforms are being pursued in several states in an effort to make the process less partisan — read AP News article attached.

“Dark Money” and Citizens United

When “the source of political money isn’t known, that’s dark money,” says the Center for Public Integrity. 

In lay terms, dark money refers to campaign money whose sources are not disclosed. An expenditure (such as a TV commercial criticizing an opponent) will often be publicly reported to the Federal Election Commission (see below explanation) but not the actual identities of the people, firms, or organizations that pay for it.

This lack of disclosure makes it harder for regulators, opponents, and the media to detect violations of campaign finance law, such as illegal overseas contributions, money from government contractors, or contributions over the legal limit. It also denies voters valuable info, significant in primaries when all candidates are from the same party and voters cannot rely on party labels to decide whom to vote for.  

Dark money can be addressed with legislative fixes. First, all organizations (corporations, labor unions and non-profits engaged in election-spending) could be required to disclose large donors whose funds are used for campaign ads. 

Second, the disclosure could include major donor sources. New Jersey and Colorado have passed laws requiring this critical information. The House of Representatives passed similar legislation in 2018 addressing dark money donors in federal elections; however, the Senate’s GOP leadership is unlikely to take it up.

Dark money groups have spent roughly $1 billion (on TV, online ads, mailers) to influence elections in the decade since the notorious 2010 Citizens United v. Federal Election Commission ruling which held that the free speech clause of the First Amendment prohibits the government from limiting how much money a group can spend. 

More than any other judgement in recent Supreme Court history, this (5-4) ruling had a major impact on the nation’s political landscape by allowing unfettered election spending and giving special interests and lobbyists more power to reshape elections. It horrified reformers by extending “personhood” to corporations and unleashing a flood of campaign cash!

More controversially, it gave rise to Super PACs (political action committees) controlled by a small group of right wing billionaire donors whose activities were based on hard right ideology. These publicity-shy mega donors became more powerful than the political parties while keeping themselves largely anonymous! 

Note that the conservative wing of the court was responsible for this judgement which was, of course, welcomed by the GOP!

A majority of Americans abhor the concept of dark money and would like to see Citizens United overturned! But how? The Supreme Court could reverse itself or Congress and the states could amend the Constitution. The first is a non-starter with so many conservative justices on the court. A constitutional amendment is more ironclad but also improbable; hence, Citizens United (like the Senate) is apparently immune from reform!

VRA Changes: 32 Million Voters Purged!

The VRA was passed in 1965 to ensure that state and local governments did not deny citizens the equal right to vote based on their race, color, or membership in a minority group. But, that right has been under threat since a 2013 Supreme Court decision undid the law’s protections by removing a key provision requiring jurisdictions with a history of extreme racial prejudice in voting laws (e.g., poll taxes, literacy tests) to obtain approval from Congress before changing voting rules. This process, known as “preclearance,” blocked discrimination before it occurred. 

However, in 2013’s Shelby County v. Holder (5-4) ruling, the court invalidated certain sections of the VRA and required that Congress pass a new formula to determine which states and localities would be subject to “preclearance.” The ruling had the effect of eliminating it altogether, ushering in a new and punitive wave of efforts to restrict voting rights largely aimed at disenfranchising Black and Latino voters.  

The effects were stunning and immediate. Within 24 hours of the ruling, Texas announced it would implement a strict photo ID (identification) law. Mississippi and Alabama also began to enforce photo ID laws that had previously been barred because of federal preclearance.

Note: between 2014 and 2018, with extremely restrictive voter ID bills enacted in 25 states, 32 million (mostly minority) Americans were purged from state voter rolls. In addition, thousands of precincts were shut down across the south, disproportionately affecting minority voters.

Note that the Republican Party is responsible for all of these suppression tactics, supported by state supreme courts packed with ideological true believers. The only way to stop them is to strengthen the VRA and restore its core protections so that southern legislatures and judiciaries are compelled to allow minorities to freely exercise their franchise. Read Politico article on the Voting Rights Act 

Cheating the System!

Schemes to throw the election to Trump were bandied about for months: one of them was to have state lawmakers in battleground states appoint new electors who would change the results of the Electoral College! 

Another plan, that Trump frequently alluded to, was to take his case to the Supreme Court where Justices Gorsuch, Kavanaugh, and Barrett would rule in his favor since they owed their seats (and, presumably, their loyalty) to him! 

Could these theories be tested? Who knows? This is the year when many norms have gone out the window! The unthinkable and yet openly-voiced expectation that a conservative-leaning court would automatically settle a dispute to benefit the president is in itself shockingly corrupt!

Survival of Democracy

For democracy to survive, the Republican Party must walk away from its underhand tactics and compete for every vote! Perhaps the 2020 presidential defeat will encourage that or — what’s most likely — they will just double down!  

Trump may have lost, but the Texas governor who unjustly limited ballot dropboxes to one per county ain’t goin’ anywhere! Nor are his congressional colleagues, who refused to fully fund the postal service amid expanded pandemic mail-in voting. Or GOP officials who refused to process millions of mail-in ballots early, enabling Trump to try to paint mail them as not quite kosher? 

There is a strong bill ready and waiting called the “For The People Act” (read link below). But it would be naive to imagine that many of the reforms recommended would be permitted by the Supreme Court’s right wing ideologues! Hence, court reform would need to proceed in tandem with fixing democracy! 

A country that proclaims itself the greatest democracy in the world has a lot of work to do. Thirty-four Senate seats are up in 2022. Twenty-two are Republican. Reform should begin now to restore and maintain public confidence that future elections are free and fair!

Ludi Joseph

Washington, D.C.

November 18, 2020

 

It’s time to abolish the Electoral College

https://www.nationalpopularvote.com/state-status

'Gerrymandering On Steroids': How Republicans Stacked The Nation's Statehouses

More states to use redistricting reforms after 2020 census

The Federal Election Commission (FEC) enforces federal campaign finance laws, including monitoring donations. It also oversees public funding for presidential campaigns.

Opinion | Voter Suppression Is Back, 55 Years After the Voting Rights Act

Text - H.R.1 - 116th Congress (2019-2020): For the People Act of 2019