National elections like the one we’ve just suffered through are, among other things, quadrennial CAT scans of the body politic. This last exam turned up cancers and lesions of all sorts, some in peripheral limbs that can be safely ignored, but others in critical organs where, left untreated, they could be fatal.
In our post-election fatigue, it’s easy to fall into a willful forgetfulness regarding what we so recently learned about ourselves and the fragility of our system of self-governance, and we have a habit of assuming that some sort of magical remission will right things before we have to face another election. But if the period from November 3rd through January 6th taught us anything, it’s that some of the structural ills of our democracy require our sustained attention and practical action. Herewith, a few nominees:
Repeal the Electoral Count Act. The dangerous farce that we witnessed in the joint session of Congress on January 6th was the direct result of the Electoral Count Act of 1887, a horribly written Federal statute that has somehow survived without amendment or repeal ever since. The ECA is the only reason Congress meets to perform the now thoroughly unnecessary charade of counting electoral votes that have already been counted, which in turn provides a stage for the sordid political theater of congressmen objecting to slates of electors on whatever grounds can be imagined. There may have been a rationale for the ECA in the horse-and-buggy era of Reconstruction, but in a world of instantaneous communication of state-certified voting results, it’s like a loaded gun left behind in a nursery.
This is an issue both parties can and should agree upon, as there’s no guarantee that next time it won’t be a gang of disgruntled Democrats who try to derail the will of the people by turning what should be a ceremonial occasion into a partisan bonfire of the vanities. Voices as disparate as Move On and The Wall Street Journal have called for the ECA to be repealed. Congress should do so, leave any issues surrounding elections to the states and the courts, and preclude the ever-present political opportunists in its ranks from meddling after the fact in national elections.
Expand Congress. The current House of Representatives is too small given the current population of the country, resulting in distortions in representation. As discussed here previously, the number of House seats has been fixed at 435 since 1929, when the average Congressional district numbered around 280,000 people. Today it stands at almost 750,000. The result is a disproportionate allocation of representatives among states, with some having more than their populations warrant, and many having less. By mathematical necessity, this distortion grows with the US population and carries over to the Electoral College, where the each state is allocated the same number of votes as its representatives in both houses of Congress.
One long-proposed solution is the so-called “Wyoming Rule,” which would increase the number of representatives in the House to the level where the ratio of representative to population would equal that of the least-populous state – currently, Wyoming. This would result in a ratio of one representative per every 520,000 or so persons and, given the current size of the US population, an increase in the number of representatives to the House from 435 to 545. Larger states would gain representatives to bring their number more in line with their populations. California would gain 13 seats, Texas nine seats, New York seven, Florida six, while places like Alaska, the Dakotas, and West Virginia would gain none. No state would lose seats, and the House would become more representative of the population at large.
Enlarging the House would also serve to bring the Electoral College into closer alignment with the national popular vote without the need for an amendment to the Constitution or the proposed interstate compact that would effectively override it. And, speaking of the Electoral College:
Reform the Electoral College. State legislatures should accelerate adoption of the National Popular Vote Interstate Compact, which would require signatory states to award their electoral votes to the winner of the national popular vote. So far, sixteen states have joined the compact, representing more than two-thirds of the electoral votes necessary to trigger it. But we should be prepared for the possibility that the NPVIC never reaches that threshold, or that it will be successfully attacked on constitutional grounds.
Another way to mitigate the vagaries of the EC that is entirely within each state’s legislative authority would be to dispense with the winner-take-all method of awarding electoral votes that effectively disenfranchises millions each presidential election, and instead allocate them in accordance with the results in each Congressional district, as Maine and Nebraska already do (although Nebraska has, ironically, introduced legislation to move to the winner-take-all method). Legislation recently introduced in Arizona, Mississippi and Wisconsin would dump winner-take-all and adopt district-level allocation of electoral votes. This trend needs to be encouraged, even though it may shrink either party’s margin of electoral vote victory in the future.
The opportunistic rule-switching described above highlights the inherent absurdity that there is no uniformity — nor even consistency election-to-election — among the states in how they award their electoral votes. But like getting rid of the Electoral College entirely in favor of a national popular vote, remedying this absurdity would require a Constitutional amendment (something we couldn’t accomplish even in the case of the relatively innocuous Equal Rights Amendment). So it falls to us as local voters to demand that our state legislators focus on Electoral College reform, starting with the rejection of winner-take-all.
Preserve the Right to Vote. It’s nothing short of shameful that the right to vote, unequivocally ensured by the Fifteenth Amendment to the Constitution, has been effectively reduced to a mere privilege, to be earned by submission to bureaucratic hazing, taking more care in completing your mail-in ballot than you would in signing a mortgage, or standing for hours in long lines on a workday during a global pandemic. One would think that in the 21st century we could see our way clear to freely voting by mail or, for that matter, online. Yet we’re headed in the opposite direction, because Republicans clearly understand the bleak demographic future they face: the more voters, the more likely they are to lose.
The election was in a narrow sense a success for Republicans because, in deposing Trump and the Republican majority in the Senate, it provided the impetus to challenge the presumption of the integrity of the voting process itself. Republicans are now moving on from the soft voter suppression of gerrymandering, at which they’d become proficient, to outright rejection of the very concept of majority rule.
Before the election, Senator Mike Lee of Utah recycled a favorite piece of Republican pedantry: that the United States isn’t a democracy, it’s a republic; that the word “democracy” appears nowhere in the Constitution, and that “rank democracy” (as contrasted, one supposes, with the un-rank kind) is a threat to “liberty, peace, and prosperity” because “the few” (i.e., the majority) can restrict the freedoms of the many (i.e., the minority).
Underlying this doublespeak is the unremarkable observation that the framers of the Constitution rejected the obvious impracticalities of a direct popular democracy in favor of a representational one, in which the various states would send emissaries to a national Congress (and “electors” to an Electoral College) to act on behalf of their constituencies. The framers were also openly elitist, believing that popular democracy in a nation as large as ours was an inherently dangerous proposition, one doomed to chaos without the constraining influence of a select meritocracy. Hence the population-based representation in the House is countered by disproportional representation in the Senate, where the Republican Senators who recently confirmed Amy Coney Barrett’s appointment to the Supreme Court represented almost twenty million fewer Americans than the Democrats who opposed it.
But “republic” though we be, we are still are representational republic, and the right to vote is the irreducible currency of our citizenship in it. Hence we need to:
- Correct gerrymandering. Hector State legislatures to reform their redistricting processes to end partisan gerrymandering and make Congressional district boundaries conform to the principles of contiguity, conformity with natural and political boundaries (such as county lines), and compactness (low perimeter to area ratio). Push for more states to adopt independent, non-partisan commissions to oversee redistricting in the wake of the 2020 census.
- Resist voter ID and anti-mail-in ballot initiatives. Numerous state legislatures, including Arizona, Georgia, Pennsylvania, and Texas, have introduced bills aimed at restricting voter access in the guise of “restoring faith in our electoral systems” — a faith cynically undermined by some Republicans in order to make such “reforms” seem necessary in the wake of an outcome they didn’t like. But there’s no good reason why electoral processes in most jurisdictions need to be “reformed” other than that voting per se threatens Republicans’ tenure in office.
- Move Election Day to a Saturday. This is a matter of amending a Federal statute, not the Constitution, an improvement so simple and obvious it would be laughable if it weren’t so long in coming. Like most of the rest of the civilized world, don’t make the willing voter decide between his or her job or schooling or even lunch hour and the exercise of our most fundamental right as citizens.
It’s said, perhaps apocryphally, that when Benjamin Franklin emerged from the final session of the Constitutional Convention in 1787 and was asked whether we were to live under a republic or a monarchy, he replied, “a republic, if you can keep it.” Sick and tired of politics though we may be, and exhausted from one of the most degrading elections in memory, we must attend anew to the business of keeping it.