The city-state of Athens is credited with implementing a system of government of and by the people, whereby eligible citizens would congregate to make decisions. That system of government, better understood today as direct democracy , lives on in the United States in the form of ballot initiatives and referenda. Some states and localities afford their citizens the right to use these measures to directly enact, change, or repeal laws themselves.
More commonly, we exercise our political power in a different way: by voting in elections to choose our representatives. These scholars understood representative democracy — the American variety — to be democracy all the same.
The United States is a republic because our elected representatives exercise political power. History also tells us that Rome was a republic, unlike Athens. When its monarchy was overthrown, Rome developed a republican system of government whereby citizens elected officials who were empowered to make decisions for the public. Hopefully, this post will help lower the heat in the online debate. There is no way that smaller states that benefit greatly from the Electoral College ever will approve a constitutional amendment to eliminate it.
The problem of the Electoral College is compounded by state laws that provide that electoral votes are awarded on a winner-take-all basis. In all states except Nebraska and Maine, the candidate who wins the popular vote in a state—even by the narrowest margin—gets all of the electoral votes from that state. This, too, greatly increases the chances of the Electoral College choosing a president who lost the popular vote. Effectively, winner-take-all meant that a vote in for Donald Trump in California or Hillary Clinton in Texas had absolutely no effect on the outcome.
Nebraska and Maine allocate electoral votes by congressional district, with the elector for each congressional district voting for the candidate who got the majority of the votes there, with the two remaining electors chosen statewide.
Accordingly, there is a much more proportional allocation of electoral votes in Nebraska and Maine than in all other states.
A lawsuit to do this is pending now. This would not entail declaring the Electoral College unconstitutional; it would merely strike down state laws that allocate electors. This would greatly increase the chances that the winner of the popular vote would be chosen as president. That is what should happen in a democracy. It is hard even to come up with a justification for a system for electing the president that is so inconsistent with basic principles of democratic governance.
A primary justification advanced in recent years is that the Electoral College causes presidential candidates to pay attention to smaller states, that presidential candidates would seldom campaign in such states. I question whether this is sufficient reason to justify the profoundly anti-democratic Electoral College. Besides, the Electoral College system compels candidates to largely ignore and not campaign in states where it is obvious who is going to win. I live in California, where there were very few ads from either candidate in the weeks leading up to the presidential election.
I am sure the same was true in Texas. But when I was in Ohio weeks before the election, ads for the candidates were everywhere. Any system of election will influence where campaigning is done, but that is not a reason to keep the Electoral College. The Constitution should be interpreted to mean that the requirement for equal protection found in the Fifth and 14th Amendments modifies the text of Article II, which allocates representatives in the Electoral College.
If nothing else, courts should invalidate state laws requiring winner-take-all and require allocation of electors proportionate to population. Never again should there be the election of a president who lost the popular vote. Partisan gerrymandering—where the political party controlling the legislature draws election districts to maximize seats for that party—is nothing new.
The practice is named for Massachusetts Governor Elbridge Gerry, who in signed a bill that redrew state senate districts to benefit his Democratic-Republican party. But what has changed is the development of sophisticated computer programs and other techniques that make partisan gerrymandering far more effective than ever before. The political party that controls the legislature now can draw election districts to gain a much more disproportionate number of safe seats for itself.
This is exactly what occurred in Wisconsin, where Republicans took advantage of their control of the legislature after to give themselves a much greater number of seats relative to their voting strength. The gerrymandering worked. The same is true in many other states. In North Carolina, essentially a purple state, Republicans have nearly evenly split the total vote for U.
House members with Democrats but control 10 of 13 congressional seats. In Pennsylvania, where the voters are fairly evenly split between the parties, gerrymandering meant that Republicans had 13 of the state's 18 seats in the U. House of Representatives. After the Pennsylvania Supreme Court struck down the gerrymander as violating the Pennsylvania Constitution and redrew the district lines, Democrats emerged from the elections with nine U. House seats, with the Republican total reduced to nine as well.
Like the Electoral College, partisan gerrymandering is inconsistent with basic principles of democratic government, as well as constitutional guarantees of equality in voting. Democracy enables voters to choose their elected officials, but partisan gerrymandering enables elected officials to choose their voters. The problem, simply put, is that the will of the cartographers rather than the will of the people will govern. Indeed, up until now, the Supreme Court has refused to deal with this serious threat to democratic governance.
In Vieth v. Jubelirer , in , the Court dismissed a challenge to partisan gerrymandering, and a plurality of four justices said that such suits are inherently nonjusticiable political questions. Justice Anthony Kennedy, concurring in the judgment, provided the fifth vote for the majority. He agreed to dismiss the case because of the lack of judicially discoverable or manageable standards, but also wrote that he believed that such standards might be developed in the future.
Thus, he disagreed with the majority opinion that challenges to partisan gerrymandering are always political questions; he said that when standards are developed, such cases can be heard. Justices Stevens, David Souter, and Stephen Breyer wrote dissenting opinions, which Justice Ruth Bader Ginsburg joined, arguing that there are standards that courts can implement.
In November , a three-judge court in Wisconsin found that state's partisan gerrymandering to be unconstitutional. This was the first court to find gerrymandering to be unconstitutional since the Supreme Court decisions a decade earlier.
As I have written in a article for the Sacramento Bee , the court applied this through a three-part test: First, plaintiffs have to establish that a state had an intent to gerrymander for partisan advantage. Second, the plaintiffs need to prove a partisan effect, by proving that the efficiency gap for a plan exceeds a certain numerical threshold.
The three-judge court used this test and concluded in a 2-to-1 decision that the election districts for the Wisconsin legislature were drawn with the purpose and effect of enhancing Republican seats and decreasing those for Democrats. The court found no legitimate purpose for this disparity and found the partisan gerrymandering to be unconstitutional.
The Supreme Court granted review of the case, Gill v. Whitford , and heard oral arguments in October Many thought it would be a vehicle for the Court to declare partisan gerrymandering unconstitutional.
But in June , the Court reversed the lower court on procedural grounds, holding that the plaintiffs failed to prove that they lived in districts that had been affected by partisan gerrymandering. Combatting voter suppression is central to HR1, the democracy reform bill championed by the Democrats in Congress. But for the past days it has been stymied in the Senate by Mitch McConnell, the Republican majority leader, and pending two runoff elections in Georgia he is likely to continue to be a roadblock.
In that case focus is likely to shift over the next two years to the US justice department which has become virtually inactive in this area under Trump. Under Biden, the DoJ can be expected to re-engage, enforcing access to voting and prosecuting election-law violations. Vox has calculated that if both runoffs are won by Democrats that gulf in representation would shoot up to 40 million Americans, while the Senate would remain in a split.
Plans had been laid to address this conundrum by granting statehood to Washington DC and to Puerto Rico, thus creating four new Senate seats. As deputy director of the Texas Organizing Project, which seeks to build a political voice for black and Latino communities, she has been battling against a Republican state legislature that has made Texas ground zero for voter suppression for years.
On top of all that, there is now the changing composition of federal courts to contend with. Over the past four years, Trump has placed more than judges , conservatives to a fault, on district and circuit courts, in addition to the three rightwingers he nominated to the US supreme court.
Such judicial activism is likely to shift the balance of the federal judiciary for years to come, with consequences on the ground in places like Texas. The pattern was vividly illustrated during the election, when the Republican governor, Greg Abbott, limited the number of ballot drop-off locations to one per county.
The move meant that Harris county, home to the city of Houston, had to close 11 drop-off sites leaving only one to serve almost 5 million people.
All three of the judges had been appointed by Trump. Nowhere was that blow felt more keenly than Texas , where Democratic hopes of seizing the state house by storm rested on flipping nine seats. Failure to take control in Texas and elsewhere hands Republicans the gift of controlling the year redistricting process in which electoral boundaries are drawn.
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