RECLAIMING AMERICA: REVERSE CITIZENS UNITED

RECLAIMING AMERICAN DEMOCRACY:  CITIZENS UNITED.

REVERSE CITIZENS UNITED

Reduce Money in Politics

“We have to reduce the influence of money in our politics, so that a handful of families and hidden interests can't bankroll our elections.  And if our existing approach to campaign finance can't pass muster in the courts, we need to work together to find a real solution.” 

Barack Obama, 2016 State of the Union Address

In his 2010 State of the Union address Barack Obama warned the nation that the Supreme Court decision in Citizens United v. Federal Election Commission would open “the floodgates for special interests.”  Six years later the floodgates had opened to over $500 million from undisclosed sources. [1]

Much has been said about Citizens United on both sides.  Those who support the court’s decision claim that criticisms are overstated, that the “floodgates” were already open and the increase in contributions was inevitable.  Those who oppose the decision argue that it made an already untenable situation significantly worse – almost to the point of no return. 

At this juncture it would be useful to review how Citizens United changed the state of campaign finance law.  First, it recognized corporations as virtual citizens by awarding them the rights of citizens to participate in the electoral process.  Second, it made corporate money equivalent to individual speech by granting corporate contributions the protection of the first amendment.  In short, the court in its infinite wisdom made it impossible to impose any realistic limitations on corporate spending in the political process.  It was the most anti-democratic decision in the modern era.  It delivered the dual oxymorons:  Money is speech and corporations are people. 

How very convenient.  It enabled the highest court in the land to hold its head high and pretend it served the cause of freedom when, in fact, it served the almighty god of corporate money.  To say that Citizens United was a poor decision is like saying the Nazis were intemperate.  To those who truly believe in the democratic form of government it was nothing short of catastrophic. 

How do you reverse a Supreme Court decision?  It is by design extremely difficult. 

You can try to work around it at the state or congressional levels.  For example, you can impose contribution limits and transparency requirements as the state of Montana did in 1994.  It passed a referendum limiting both individual and political action committee contributions.  The Ninth Circuit Appellate Court upheld the limitations after a lengthy process of challenges and the Supreme Court let it stand by refusing to hear the case. [2]

As a result of the court’s decision Citizens United in specific and campaign finance laws in general are in limbo.  It seems the court yielded to the power of the states to decide how their own elections are run.  It suggests that the court is having second thoughts about their own judgment in the wake of Justice Anthony Scalia’s departure.  It remains to be seen whether they would allow congress to limit contributions or require transparency. 

The Ninth Circuit also upheld the transparency provision of the Montana law that requires groups that mention candidates in election ads or handouts to reveal their identity and disclose their spending. [3]

The Supreme Court has yet to rule on this provision.  Even if it upholds the Ninth Circuit it will likely limit its scope to the states.  Traditionally, the court has upheld states rights to run elections in whatever discriminatory and/or differential manner they choose.  The lone exception to the rule is the notorious Bush v. Gore 2000. 

What we have learned in this maze of legal uncertainty is that it pays to fight the fight in the courts.  If Montana can impose limits and require transparency, then congress should have the power to do the same on a national level. 

Congress should take up the challenge and pass new legislation as soon as Democrats gain a majority in the United States Senate and kill the filibuster in the opening session.  Meantime, legislatures in every state should proceed with campaign finance reform on the assumption that it must be defended in the courts. 

So how do we reverse a Supreme Court decision?

In the long term, we replace the anti-democratic justices on the court but that could literally take decades.  If Donald Trump selects a third Supreme Court justice before his tenure expires, the court of last resort will be a wasteland for civil rights and democracy for as long as rivers run and children wonder why.  While impeachment for justices like Brett Kavanaugh and Clarence Thomas is a possibility, it is far too remote at present to expend our resources. 

The possibility of expanding the court to eleven justices as Franklin Roosevelt attempted to do has also been floated and it is hardly as remote as it would appear.  The number of justices on the Supreme Court was not fixed by the constitution.  It is subject to the will of congress and has changed over time.  In 1801 congress set the number at five.  It was raised to seven in 1807, nine in 1837 and ten in 1863.  It was reduced to seven in 1866 and increased to nine in 1869. [4]

Given the preeminent needs of our times, increasing the number of justices to eleven would be fully justified.  Acknowledging that Republican manipulations denied Barack Obama his rightful appointment and the distinct possibility that an illegitimate president appointed the most recent justices –Neil Gorsuch and Kavanaugh – it seems a reasonable remedy.  It would of course require control of the US Senate and the elimination of the filibuster – both of which are reversible. 

If at some point both political parties recognize the need to stabilize the court, a constitutional amendment would be required.  In the wake of Donald Trump we can no longer assume norms will hold.  Every not nailed down by the constitution is subject to partisan manipulation. 

In the meantime, those of us who believe in democracy need to attack Citizens United with legal challenges on every level of government on every conceivable ground.  We attack it with legislation establishing strict limits on corporate funding.  We attack it with transparency laws following the precedent of Montana.  We attack it with a battalion of attorneys armed with a million arguments.  We attack it like the right has attacked Roe v. Wade – with a certainty of purpose and a relentless onslaught of cases.  Let’s make our adversaries spend the money, time and political capital we have had to spend defending a woman’s right to choose. 

Eventually they will wear down.  Knowing they are on the wrong side of history, knowing they are defending the indefensible they will cut their losses and yield in the fullness of time. 

1. “On sixth anniversary of Citizens United, Obama still has chance to act.”  By Lisa Gilbert and Stephen Spaulding.  The Hill, January 21, 2016. 

2. “US Supreme Court declines to take up Montana campaign finance case.”  Associated Press Report, Independent Record, January 14, 2019. 

3. “Fed appeals court upholds Montana’s landmark campaign finance disclosure law.”  By Mike Dennison.  Montana News, August 12-13, 2019. 

4. “Why Are There 9 Supreme Court Justices?”  Live Science, July 7, 2018. 

Jack Random is the author of the Jazzman Chronicles, Pawns to Players: The Chess Trilogy, Wasichu: The Killing Spirit, Random Jack Children's Hour: Stories for Young Minds and The Long Way Home: Reclaiming American Democracy. 

RECLAIMING AMERICA: PROTECT THE BALLOT BOX

RECLAIMING DEMOCRACY:  SECURE THE BALLOT BOX.

PROTECT THE BALLOT BOX

Democracy be Damned!

“It’s not who votes that counts.  It’s who counts the votes.” 

Attributed to Joseph Stalin, Soviet Dictator 1878-1953

It is not known when the first election took place.  Maybe it was in ancient Athens circa 600 BC or maybe it was in some dark cave where Neanderthals selected a martyr to appease the gods.  Whenever it took place it can safely be assumed that the first attempt at election fraud happened shortly thereafter.  When power is contested it is the nature of human beings to abandon all moral restraint.  In the absence of rules, regulations and oversight a free and fair election is highly unlikely.  In fact, when rules are not enforced, regulations are subject to interpretation and punishment is limited to a gentle public admonition, the odds of a fair election become negligible. 

In the post Civil War South democracy was a myth.  Like modern day Russia or Turkey, people went through the motions of an election but the outcomes were preordained.  Former slaves were granted the vote but former slaveholders found a variety of ways to deny that vote, including poll taxes and absurd literacy requirements.  The assassination of Abraham Lincoln postponed true emancipation for a hundred years as his successor, Andrew Johnson, a blatant racist, sought to negate everything that Lincoln and the Union Army fought and died for.  Between 1865 and 1900 it has been estimated that there were no less than 262 disputed elections for seats in the House of Representatives – predominantly in the South.  [1]

There are many ways to steal an election and most of them have been executed over time with varying degrees of success.  There is stuffing the ballot box and its counterpart: destroying valid votes.  There are notorious cases of votes being cast by the deceased under the Chicago Machine of Richard Daley and widely reported cases of buying votes in the New York City of Tammany Hall. 

In the recent midterm election of 2018 a case of election fraud concerned absentee ballot harvesting in the ninth congressional district of North Carolina.  In that scheme an operative was hired to collect blank absentee ballots and fill them out in favor of his Republican client.  A court threw out the results and a special election was ordered.  The results remained the same but at least the man responsible for the operation faces felony charges of ballot tampering and perjury – a far cry from the accusation of “shenanigans” that operatives usually face when defrauding democracy. 

Since voting became electronic there have been numerous claims of vote flipping where voters report casting their votes for one candidate while the machine records votes for the opposing candidate.  In 2004 Walden O’Dell, the chief executive of Diebold, Inc., manufacturer of Ohio’s voting machines, famously guaranteed deliverance of Ohio to sitting president George W. Bush.  He kept his word, delivering Ohio’s decisive electoral votes in an extremely close election.  Reports of various anomalies triggered speculation that electronic vote tampering along with massive disenfranchisement schemes aimed at minority communities awarded a second term to the younger Bush. [2]

Faced with accusations of securities fraud, Diebold changed its name and was later acquired by Election Systems and Software.  Problems with electronic voting machines did not vanish with the name change, however.  Diebold machines are still in use in eighteen states as well as Brazil and other nations.  As recently as August of this year hackers in Las Vegas demonstrated how vulnerable these systems are by converting voting machines into game consuls, a jukebox and conduits for other endeavors in a matter of minutes.  Changing votes or vote tallies was considered too easy to challenge the hackers. [3]

Accusations of vote flipping and other means of tampering with electronic voting have become commonplace but little has been done to correct the vulnerability.  Senator Ron Wyden of Oregon observed:  “Election officials across the country are buying election systems that will be out of date the moment they open the box.” 

It recently came to light that Russian affiliated hackers gained access to the electronic ballot boxes in all fifty states in the 2016 presidential election.  The Senate Intelligence Committee warned the White House as well as the public that Russian intelligence remained motivated and capable of interfering in the next election but neither the president nor his party have seen fit to act at any level to protect the ballot box.  In fact Senate majority leader Mitch McConnell was so unimpressed that he blocked election security legislation on the same day that the revelations were revealed.  It was this lack of concern that earned McConnell the moniker of “Moscow Mitch.” [4] 

(He later changed his position, giving support to the legislation in a yet to be determined form.  If it provides added security measures, mandatory paper ballots in all fifty states and the District of Columbia, and a requirement for campaigns to report foreign contacts, congress is to be commended on both sides of the aisle.  If, however, past behavior is a predictor of future conduct, it will fall significantly short.) [5]

While the Intelligence Committee found no evidence that the Russian hackers had actually flipped votes or otherwise altered ballots, they were poised to “delete or change voter data” in the state of Illinois.  The fact that their preferred candidate won the election made it unnecessary to alter votes.  In any case, the possibility of defrauding an election from either domestic or foreign sources has become both eminent and imminent. 

The House allotted $380 million to help states update their electronic voting systems but it failed to mandate paper ballot backups – the surest and simplest way to protect the integrity of our electoral process.  In the midterm election fourteen states used electronic ballots without a paper trail for some significant portion of their voting population.  They included the critical states of Pennsylvania, Georgia, Florida, Texas and Tennessee.  In 2020 the number will drop to eight, including Texas and Tennessee.  It represents significant progress but it is hardly enough.  The balance of power in the US Senate may well be at stake.  With the antiquated systems operating in so many states, paper ballots should be mandatory.  [6, 7]

Congress has also pointedly failed to establish triggers for audits or recounts in contested elections.  It has failed to put in place stiff sanctions against foreign interference despite overwhelming evidence that the threat is real.  It has failed to mandate prison sentences for deliberate denial of the right to vote.  It has failed to put in place state of the art safeguards.  It has failed to establish stiff retaliatory sanctions for foreign nationals who interfere in our elections. 

In short, the Republican Party is not currently interested in the integrity of our elections.  Behind their amoral leadership, they are committed to winning at any cost.  Democracy be damned! 

It is not certain that the Democrats would be any more scrupulous but it is certain that, as long as Republicans control either house of congress, there will be no serious attempt to secure the ballot box.  A nation that fails to protect the ballot box is a nation that does not deserve to be called a free and fair republic.

1. “The Roots of Voter Fraud in America.”  By Barbara Finlay.  American History Magazine, November-December 2016. 

2. “Diebold Indicted: Its spectre still haunts Ohio elections.”  By Bob Fitrakis.  Columbus Free Press, October 31, 2013. 

3. “Hackers can easily break into voting machines across the US.”  By Igor Derysh.  Salon, August 14, 2019. 

4. “Russia Targeted Election Systems in All 50 States, Report Finds.”  By David E. Sanger and Catie Edmondson.  New York Times, July 25, 2019. 

5. “McConnell support for election security funds leaves Dems declaring victory.”  By Maggie Miller and Jordain Carney.  The Hill, September 20, 2019. 

6. “14 States Forgo Paper Ballots Despite Security Warnings.”  By Gopal Ratnam, Congressional Quarterly.  Government Technology, October 31, 2018. 

7. “Analysis shows 12% could vote without paper backup in 2020.”  By Mary Clare Jalonick.  Associated Press, August 13, 2019. 

8. National Academies of Sciences, Engineering, and Medicine. 2018. Securing the Vote: Protecting American Democracy. Washington, DC: The National Academies Press.

RECLAIMING AMERICA: OUTLAW GERRYMANDERING

RECLAIMING DEMOCRACY:  THE LONG WAY HOME.

OUTLAW GERRYMANDERING

The Age of Designer Districting

by Jack Random

      The principle of equivalent value in voting – one person, one vote – is absolutely fundamental to the concept of democracy.  That principle has been under constant assault on multiple fronts since the birth of our republic.  The Electoral College is an affront to the principle of equivalent value.  The disproportionate power of the senate is an affront to the principle of equivalent value.  But perhaps the greatest and most dangerous assault of all, given the capability of advanced technology, is the advent of designer districting – aka gerrymandering. 

Informed citizens are aware and outraged by the original constitutional provision of 3/5ths of a vote per slave assigned to slave holders.  That alone dismisses the presumption of constitutional originalists that the founders got it right.  Frankly, they got it wrong.  The more enlightened of our founders understood that their prescribed system of government was a work in progress.  Franklin, Jefferson, Monroe and Madison expected and advocated that future generations would continually modify their work and mold the system to form “a more perfect union.” 

In many ways we have upheld our responsibility to create a better and more democratic system through the means the founders provided:  constitutional amendment.  We have expanded the franchise to include women, individuals without property and racial minorities.  We have prohibited systematic denial of the right to vote on the basis of race and gender.  Until recently, we have empowered the Justice Department to protect citizens against state and local governments when they attempt to deny the right to vote – at least on the basis of race. [1]

Unfortunately, as the Supreme Court has too often reminded us, we have fallen short on numerous grounds, including gerrymandering.  A recent court decision – Rucho V. Common Cause 2019 – upheld gerrymandering as long as it is not based on race or sex.  The ruling essentially legalized partisan gerrymandering while paradoxically claiming to uphold the “one person, one vote” principle.  The Brett Kavanaugh era has begun. [2]

Justice Elena Kagan wrote a well reasoned dissent, stating that partisan gerrymanders “deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.  In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.” [3]

For the uninitiated, gerrymandering is a disgraceful bipartisan practice that goes back to 1812 when Massachusetts Governor Elbridge Gerry signed a bill approving the first congressional district designed to under-represent the opposition.  To some its strange shape appeared to resemble a salamander. 

The concept is simple.  If you have one district that gives your party a 65 to 35 percent advantage and two adjacent districts that give the opposition a narrow advantage, you combine them to produce two districts that give your party a comfortable advantage and one district that gives the opposition an overwhelming advantage.  The net result is a gain of one representative with the same number of voters.  If you really do an exceptional job you might be able to get all three seats with that 30% margin. 

In 1812 gerrymandering was an ingenious way to cheat the system but it was not entirely reliable.  Today we have computers and programmers that can design districts that reliably maximize the intended results. 

It was by this means that the Republicans established majority control of the House of Representatives while attracting fewer votes than their Democratic opposition in 2012 – the first election after the 2010 census.  The Grand Old Party maintained disproportionate control of the lower chamber until 2018.  In the 2012 election Democratic candidates received 1.4 million votes more that their Republican opponents but gained only eight seats in congress.  In 2018 Democrats attracted an 8.6% advantage representing 9.7 million votes over Republicans nationwide and gained 41 seats.  According to the Associated Press, gerrymandering cost the Democrats sixteen seats. [4]

To their credit Republicans recognized the importance of controlling state governments prior to the ten-year census and channeled large sums of money from the Koch brothers and other corporate entities into those races.  They subsequently controlled the apportionment process of redesigning congressional districts based on updated census data. 

The same reapportionment process that applies to the House of Representatives applies to state legislatures as well.  Thus, Republicans maintain disproportionate control of the process going into the next election.  Control of the state houses in the next election will determine the potential for gerrymandering over the next decade, as the next census will be conducted in 2020. 

All this is not to say that gerrymandering is strictly a Republican strategy.  In the 1970’s brothers Dan and Phil Burton of California revolutionized the devilish art of partisan redistricting in favor of Democrats.  It’s just that in recent years we have witnessed the phenomenon as predominantly Republican.  Distressed by changing demographics that favor Democrats, Republicans have sought any means to hold onto what they perceive as their fair share of power.  Consequently they have concentrated a great deal of energy and resources at the redistricting process.  In a sense, the Democrats were caught sleeping before the 2010 census.  The next one will be contested. 

The problem is that state legislatures directly or indirectly control who draws the map for congressional districts.  Because legislatures are partisan bodies, the majority party holds sway over what districts will be adopted. 

Clearly, if you believe in democracy and the fundamental principle of assigning equivalent value to every vote, this is not how it should be done.  It is certainly not what the Supreme Court intended in Baker V. Carr 1962, Wesberry V. Sanders 1964 and Reynolds V. Sims 1964.  In those decisions the court attempted to stop one injustice by requiring states to reapportion legislative districts.  Up to that time some districts were wildly imbalanced because they had not been updated since the 1900 census.  Unfortunately, while the updated districts reflected equal numbers, they did not produce the desired effect of equalizing representation. [5]

Prior to the “redistricting revolution” of the sixties the big cities and surrounding areas were vastly under-represented while the rural areas were significantly over-represented because the great migration to the cities had taken place.  Baker V. Carr changed everything and Gray V. Sanders 1963 went further by establishing the “one person, one vote” standard to statewide elections.  Courts have interpreted the “one person, one vote” standard as applying to congressional and state legislative districts as well.  That is, districts must be updated every ten years and must represent an equal number of people.  Because the court did not address the question of proportionate representation, it left the door open to the partisan manipulations that have become standard political practice today. 

There was hope that the current court would advance the cause of democracy by striking down purely partisan redistricting but that hope rested on the assumption that the court favored the principles of democracy.  The Roberts court has made it more than clear in a number of decisions – including the infamous Citizens United V. Federal Election Commission 2010 – that it does not believe in democracy.  Far from outlawing partisan gerrymandering, the court has given full license to further develop and practice the devious art. 

So what can be done if the courts will do nothing? 

The battle must be fought at the state level and in the halls of congress.  Four states – Arizona, California, Colorado and Michigan – have created independent commissions assigned to reapportionment.  Their efforts should be applauded for in each case they have sacrificed power in favor of fairness.  Other states should follow their example. 

But the problem cannot and should not be left in the hands of the states.  The next congress must go about the business of establishing new law based on the principle of equivalent value:  one person, one vote and every vote of equal value. 

The same computers that have developed extreme designer districting can create districts of equivalent value.  The process must be secured and zealously protected for there will always be individuals and organizations dedicated to manipulating the vote to their advantage. 

I suggest an independent election board in every state empowered and funded by the federal government.  Its sole responsibility would be to create fair districts according to the principle of equivalent value: one person, one vote and every vote of equal value.  The reapportionment process should be monitored for any irregularities and stiff fines and penalties should be imposed for violations of the equivalent value standard.  Criminal penalties should be applied to deliberate attempts at sabotage. 

In short, the House of Representatives should reflect in rough proportion the population as a whole.  To accomplish that goal – a more perfect democracy – gerrymandering must be abolished once and for all. 

Jazz.

1. "Shelby County v. Holder." Oyez, www.oyez.org/cases/2012/12-96. Accessed 12 Sep. 2019.

2.  The elevation of Brett Kavanaugh to the Supreme Court in October 2018 tipped the balance of power distinctly to the right. 

3. “The Supreme Court just said federal courts can’t stop partisan gerrymandering.”  By Andrew Prokop.  Vox June 27, 2019. 

4. “AP: GOP won more seats in 2018 than suggested by vote share.”  By David A. Lieb.  Associated Press, March 21, 1019. 

5. “Re-mapping American Politics: The Redistricting Revolution Fifty Years Later.”  By David Stebenne.  Origins: Current Events in Historical Perspective.  Volume 5, Issue 5, February 2012. 

Jack Random is a retired public schools educator.  A novelist and political commentator, his works include Wasichu: The Killing Spirit, Number Nine, Pawns to Players: The Chess Series and the Jazzman Chronicles. 

RECLAIMING AMERICA: THE ELECTORAL COLLEGE

RECLAIMING DEMOCRACY:  THE LONG WAY HOME. 

BURY THE ELECTORAL COLLEGE

By Jack Random

How the Electoral College could have survived for as long as it has is beyond the comprehension of any reasonable person.  All defenses rest upon the fundamental belief that the people cannot be trusted to choose their own leaders.  You can believe in aristocracy and support the Electoral College.  You can believe in monarchy or autocracy or outright dictatorship and support this antiquated system.  But you cannot believe in the republic – a representative form of democracy – and still support the Electoral College. 

The same people who defend the filibuster as a means to protect the rights of the minority invariably argue that the Electoral College is essential to protect the interests of the smaller states.  Don’t be fooled for a fraction of a microsecond.  The defenders of the Electoral College have no more interest in the people of West Virginia than they do the people of Massachusetts.  They only want to game the system and impose the power of the elite over the will of the people. 

The defenders of the rich and privileged class tell us that without the Electoral College presidential candidates would ignore the so-called “flyover” states but they are entirely unmoved by the fact that every four years for as long as I can remember presidential candidates have ignored the forty million voters of my home state in California and the twenty million voters of New York in the general election.  California and New York have been ignored in the primary season as well – although a change in the primary schedule may end that in the current campaign at least for California.  Apparently it is fine that our votes and interests are dismissed as irrelevant as long as Ohio and New Hampshire have their say. 

It is also the case that because of the Electoral College system the entire South with the exception of Florida is ignored in the general election.  Only the Republicans set foot in Tennessee, Alabama, Mississippi, Georgia, Texas or Louisiana during the primaries.  Once the general election begins the South ceases to exist. 

While it is true that larger states that are not considered battlegrounds might get more attention with a popular vote for president, it is not true that the smaller states would be ignored.  In a free and fair election between qualified nominees, candidates will search everywhere to boost their vote totals.  For the first time since the Civil Rights movement, Democrats will venture below the Mason-Dixon line.  For the first time since Reagan, both Republicans and Democrats will visit California for more than corporate fundraisers. 

Has it occurred to Democrats that the reason the South consistently and overwhelmingly votes Republican is that Democrats don’t seem to care?  They don’t show up.  They don’t campaign.  They let the local candidates take care of themselves.  If you never hear progressive opinions, how likely are you to vote for progressive candidates? 

The South is changing both demographically and politically.  It’s changing faster than anyone from outside the region imagines.  Just as Californians are tired of their votes having no impact on presidential races, Southerners must feel the same way.  Both are neglected because of the winner-take-all Electoral College system.  Why vote when the outcome has already been etched in bronze? 

On the same line, has it occurred to Republicans that they need to show up in Democratic states?  There are conservatives in California, Washington, Massachusetts and New York.  Republicans have won elections in the blue states in the past but no one will vote for candidates that don’t bother to show up and state their case. 

I have never heard a citizen of Montana proclaim that his or her vote should count fifty or sixty times more than a Californian’s vote but that is exactly what the Electoral College system does.  It magnifies the votes of small states while shrinking the importance of large state votes to the extent that a post-Reagan California voter can rightfully state that his or her vote has never counted in a presidential election. 

In fact, in the last election as well as the next, if you do not live in Pennsylvania, Michigan, Wisconsin or Florida, your vote was little more than an intellectual exercise in civic duty.  Oh, it may have counted for state and local elections but it did not and will not count for the presidency. [1]

The Electoral College was created at a time when voting in a national election was a cumbersome and time-consuming process.  Its primary purpose was to act as a shield against the common, uneducated masses.  If the people made a terrible mistake by voting for an English or French monarch’s proxy, for example, an assembly of electors could correct the error.  The founders never anticipated that their twisted system would enable a proxy of the Russian government to become the leader of the free world. 

Like our current president, the founders were not entirely persuaded that representative democracy was a viable system.  They were uncertain their experiment would survive the ages.  They were obsessed with erecting barriers to the naked will of the uneducated mob.  Remember that ordinary working people were not allowed to vote in the early years of the republic.  Let alone women and people of color, only the landed gentry were allowed to participate in choosing a president.  Recall that slaves were accounted for as 3/5ths of a vote belonging to their masters. 

After two and a half centuries it is past time to commit to democracy.  A representative democracy with an educated populace is a viable system of government.  It is superior to every other type of government and it is time that we acknowledge its viability.  It is time for those aristocratic defenders of the Electoral College to step aside and allow us to begin the work of rebuilding our democratic institutions.  It is time to abolish the Electoral College by any means.  Never again should a minority of voters elect a president of the United States of America. 

There are at least two ways to end the Electoral College.  One is to pass a constitutional amendment replacing the twelfth amendment with a simple majority vote of the electorate.  The second is a process currently under way.  It is called the National Popular Vote Interstate Compact and it involves gathering the support of enough states to capture 270 electoral votes – the number needed to elect a president. [2]

At present it has been enacted in fifteen states and the District of Columbia representing 196 electoral votes.  The campaign should go on.  At present mostly Democratic leaning states predominantly from the east and west have joined the compact.  The case has not been made effectively enough in the South or the Midwest.  I believe the people of Missouri and Kansas, Nevada and Georgia can be persuaded that a direct election of the president and vice president is in all of our interests.  It will force politicians and presidents to consider the needs of all Americans.  It will end the era of battleground states where presidential candidates spend all their time in the handful of states that will decide the winner of the Electoral College. 

Moreover, it is the right thing to do.  If you believe in democracy, it is absolutely the right thing to do. 

Success of the National Popular Vote compact would be a great step forward.  It would stop the Electoral College in its tracks.  However, it would not bury it.  It would leave the future of American democracy on weak grounds.  The defenders of the Electoral College would campaign hard, spending unlimited amounts of corporate money, to overturn the compact in the critical states.  To kill and bury the college for good we will need a constitutional amendment. 

Amending the constitution is a long and arduous process.  It must be passed by a two-thirds vote in both the Senate and the House.  The proposed amendment must then be ratified by three-fourths of the states.  The process is extremely difficult for a reason.  The constitution should not be altered on a whim or subjected to the passions of the day.  An amendment to the constitution must be simple and fundamental to the American system of government.  Amendments for the right to vote and a direct election of the president are exactly that:  Straightforward and fundamental. 

To paraphrase Tom Paine:  Democracy comes at a high price.  “What we obtain too cheap, we esteem too lightly.” [3]

Our politicians have become accustomed to gaming the system.  Every four years they play variations on the same game.  Every four years candidates concoct bizarre formulas for securing a winning total of electors.  Every four years candidates pledge allegiance to farm subsidies and bio-fuels because Iowa and Ohio come early in the primary season.  When is the last time the candidates came through on their promises to the “flyover” states?   How often do presidents come to Ohio or New Hampshire when the campaign is over? 

We need a contingent of powerful advocates, including presidential candidates, who are fully committed to democracy and able to present the case for abolishing the Electoral College.  When that happens the college will finally fall and the entire nation will celebrate a rebirth of American democracy. 

Jazz. 

1.  “The 2020 Electoral Map Could Be the Smallest in Years.”  By Dan Balz.  Washington Post, August 31, 2019. 

2.  National Popular Vote Interstate Compact – Making Every Vote Count. 

3.  The American Crisis, Number 1.  By Thomas Paine. 

Jack Random is a novelist and political commentator.  His works include Wasichu: The Killing Spirit, Pawns to Players: The Chess Series, and the Jazzman Chronicles. 

RECLAIMING AMERICA: THE RIGHT TO VOTE

LONG WAY HOME:  RECLAIMING DEMOCRACY

A CONSTITUTIONAL AMENDMENT: 

THE RIGHT TO VOTE

  

“The individual citizen has no federal constitutional right to vote for electors for the President of the United States.” 

Justice Antonin Scalia for the Majority, Bush V. Gore 2000

It came as a surprise to many informed citizens when the Supreme Court ruled in Bush V. Gore that Americans did not possess a constitutional right to vote for the president of the United States.  It seems the constitution makes reference to the right to vote but not specifically in regard to federal elections. 

Ratified in 1870, the fifteenth amendment prohibits denying the right to vote on the basis of “race, color or previous condition of servitude.”  In 1913 the seventeenth amendment required the election of United States Senators.  Prior to that amendment senators could be chosen by a variety of means.  In 1920 women were granted the right to vote or rather the denial of the right to vote on the basis of sex was prohibited.  In 1961 residents of the District of Columbia were granted the right to vote in presidential elections – or rather the right to vote for members of the Electoral College.  In 1964 the poll tax was prohibited.  In 1971 the age requirement for the right to vote was lowered from 21 to 18. 

In the year 2000, with the Electoral College hanging by the loose chads of Florida in the presidential election, the Supreme Court reviewed all constitutional references and decided that there was in fact no right to vote in national elections.  A thin majority of justices came to this conclusion because it facilitated their purely partisan decision to award the election to fellow Republican George W. Bush.  They seemed to recognize how specious their argument was when they also pleaded with future justices not to give their decision the weight of precedence. 

Why was it important that the Supreme Court deny the right to vote?  Because, if the citizens of Florida possessed a right to vote, then the court could not deny that right by pre-empting a full recount in Florida.  The court could not end the recount process and choose the next president by a five to four majority.  That is exactly what the court did. 

We are left with a hole in the constitution the size of democracy itself.  If we follow the court’s reasoning, a theoretical right to vote cannot be denied on the basis of age above 18, race, color, sex or the ability to pay a poll tax but it can be denied for any other reason.  In the case of Florida the right to vote could be denied for expediency or partisanship. 

Does anyone really believe that the court’s decision to cut off the recount would have been the same if it awarded Albert Gore the presidency?  I don’t think so. 

As to the court’s plea to negate the decision’s precedent value, it is about as useful as a “theoretical” right to vote.  The Supreme Court delivers the law of land.  One of the few judicial powers it does not possess is the power to negate precedence. 

In the wake of Bush V. Gore the nation’s leaders should have rallied to reaffirm the institutions of democracy.  Instead they praised the wisdom of the founders in creating such anachronisms as the Electoral College.  Consequently, in the year 2016 we awarded a candidate with 3 million votes less than his opponent the White House.  With all due respect, this is not wisdom; it is idiocy.  That we have allowed a minority of voters to elect the president twice in less than two decades is a disgrace to all we hold dear.  Moreover, those two mistaken presidencies will likely be recorded in history as supreme catastrophes. 

If we wish to restore democracy in America it is imperative that we affirm the right to vote.  We can then proceed to the principle of one person, one vote or equivalent value of every vote.  That will be a hotly contested issue. 

Who can stand up in America and proclaim that an otherwise qualified individual does not possess the right to vote?  There are those who will advance contorted arguments of every flavor and description to justify gerrymandering, the Electoral College, special identification procedures and even unequal access to voting across districts but there are very few so bold as to proclaim that every law-abiding individual of age should not possess the right to vote. 

Only the Supreme Court has done so and yet they did so in such a sly and devious manner that few Americans have any idea that it is the law of the land.  We do not have a right to vote.  When it matters most – in the election of a president – we do not.  Antonin Scalia and his colleagues on the Supreme Court may like it that way.  Common citizens should not.  They have nullified the power of the people and they will continue to do so until we stop them. 

We must rectify this affront to the American republic.  We must advance a constitutional amendment so simple and pure that it defies anyone the impudence of denying it.  I propose the following: 

Section 1:  All citizens aged 18 or older possess the right to vote in appropriate elections of government officials and this right shall not be denied or abridged by the United States or any state or local authority. 

Section 2:  Congress shall have the power to enforce this article by appropriate legislation. 

Let the arguments begin. Those who stand in favor can be counted on as defenders of the democratic form of government.  Those stand against are the enemies of democracy.  While it seems as simple and obvious as gravity, the opposition will hire the finest and most expensive law firms to prevent its passage at all cost – just as they did the equal rights amendment. 

The first argument will likely concern those who have lost the right to vote because they were convicted of serious crimes and are either behind bars or serving periods of probation or parole. 

Certainly we could exempt the prisoner and parolee population but that would violate the principle of universal suffrage.  If the right to vote can be taken away it is no longer a right; it is a privilege.  We do not strip the imprisoned of the right to speak.  We do not revoke the right to worship as one pleases.  We do not take away the right to medical care – a right that is not yet recognized in America.  Why then should we take away the right to vote? 

Of course we do deny prisoners the freedom to live in open society and prisoners and parolees the right to possess firearms in the greater interest of society at large and prison officials in particular.  Is there an equivalent interest with the right to vote?  Despite the fact that we imprison more of our citizens than any other civilized nation on earth, those behind bars represent only .007 percent of the population.  There is no evidence to suggest that this small number would have a significant effect on elections.  To the extent that it could have an effect, there is no evidence to suggest that it would be detrimental to society.  While there are more individuals on parole than in prison, they have paid their debt and are entitled to their rights. 

The enemies of democracy will make this argument not because they think it’s important or because they think it is right.  The fact is they don’t care whether or not prisoners and parolees obtain the right to vote.  Most of them will not vote anyway.  They will make the argument because they believe it will provoke a knee-jerk reaction in good, law-abiding citizens.  They make the argument because it will empower them to go on denying the right to vote to people of color and people who are not likely to vote in their interest. 

What is their interest?  They represent the moneyed class, plain and simple.  They are the one-percent that the anti Wall Street movement and Bernie Sanders drew attention to in their respective movements.  They are the privileged individuals and corporations that are accustomed to controlling the strings of our government. 

The simple right to vote will threaten their control.  The simple right to vote will empower the people to their detriment. 

Those who defraud elections to their advantage have long exploited the parolee population.  While the recent trend is for voting rights to be restored upon completion of sentence, in the year 2000 Florida used its parolee list to disenfranchise tens of thousands of black voters.  That is the dirty little secret behind the election of George W. Bush.  Federal courts, including the Supreme Court, have long yielded the administration of elections to the states.  That would end with a constitutional recognition of the right to vote. 

Regardless of how you may feel about prisoners and/or parolees voting, it is not a reason to deny the fundamental right of all citizens to vote. 

What other arguments are there against a constitutional right to vote?  Let’s see.  There are none – at least none that are not flagrantly invalid or obviously tainted.  You could argue for states rights but that would conjure memories of how the Southern states denied blacks the right to vote for over a century.  No one who believes in the principles of democracy can seriously argue that an individual right to vote should be subject to the discretion of any given state.  In a democratic government no state should deny a person’s right to vote.  Ever. 

Had this principle been in place the disenfranchisement scheme in Ohio in the 2004 election – a scheme that may well have decided the presidential election in favor of Bush over Kerry – would have been subject to legal recourse.  Moreover, it could have been challenged in court prior to the election. 

The disenfranchisement schemes that have haunted our elections for decades are still in place.  They are being challenged in court but too often the challenges are falling because there is no federal recognition of the right to vote. 

That must change.  A society that does not embrace the right to vote has no right to call itself a democracy. 

Jazz. 

“Americans lack the right to vote.”  By Niko Bowie. Yale News, November 16 2005. 

Jack Random is the author of the Jazzman Chronicles as well as a variety of fictional works, including a trilogy of novels entitled Pawns to Players:  The Chess Series.  He is retired and living in central California. 

RECLAIMING AMERICA: THE SENATE

JAZZMAN CHRONICLES:  THE LONG WAY HOME.

A MORE DEMOCRATIC SENATE: 

ENDING THE FILIBUSTER

We have long been told that the genius of our system of government lies in the checks and balances not only between branches of government but within the legislative branch of government.  The House of Representatives possesses the power of the purse.  The President holds the power of executive action, including the veto.  The Senate has the power to withhold consent for executive appointments and to stifle all congressional action by requiring a 60% vote to bring any legislation to the floor. 

The “genius” of our system has become a chokehold on the government.  The current constellation of a Democratic House, a Republican Senate and a Republican White House means that no significant legislation can even be considered.  We could replace the president tomorrow with the candidate of our choice and still the government would remain paralyzed and unable to act.  The system has granted the Senate Majority Leader the power to veto all legislative action by refusing to take a measure to the floor. 

This must end with the next congress.  It does not serve the nation and it is not what the founders intended.  The senate has the power to change its rules with a simple majority vote at the beginning of a session and it must do so.  It can only happen if the Republicans yield control of the senate by losing at least three seats.  Even then, it would require a majority that is willing to do what no majority has been willing to do before:  Sacrifice power by ending the filibuster. 

Clearly, at a time when the nation and the world are facing crises critical to the future of the species, it no longer matters what the founders intended.  The system is inadequate to the needs of the people.  It is as if the patient is on life support with a failing lungs and the doctor is awaiting the approval of an insurance company executive to proceed with a critical operation.  While the scenario is not as farfetched as it should be, we are the patient and Mitch McConnell is the insurance executive.  Moscow Mitch has no intention of saving the patient. 

Those who consider this gridlock the product of genius clearly do not value the principles of democracy for the senate rivals the judiciary as the least democratic institution in all branches of government.  The senate did not have a black member until Hiram Revels of Mississippi in 1870 and has had only ten black senators in its entire history.  It welcomed its first Hispanic member, Octaviano Larrazolo of New Mexico, in 1928 and its first woman, Hattie Caraway of Arkansas, in 1932. 

Even today, the senate disproportionately represents white males.  Of one hundred senators, 75 are men and 91 are white.  While 12% of the population is black and another 12% is Hispanic, only three senators are black with one (Kamala Harris) being considered multi-racial and only four senators are Hispanic. 

These numbers represent a gross imbalance of power and it is not coincidental.  The founders meant for the Senate to represent the elite and to place a check on the common rabble of the lower chamber.  In other words the founders, who were composed entirely of white male landowners, wanted the Senate to impede the progress of the people.  In that it has succeeded beyond all expectations. 

Congress is not without its flaws but even when we factor in designer districting and disenfranchisement by various means it is infinitely more democratic that the Senate.  Each congressional district represents approximately 747,000 constituents.  This number holds fairly steady whether a district is in Florida or Missouri, Mississippi or California.  By contrast, a senator from the state of California represents approximately 40 million people while a senator from Wyoming represents approximately 580,000 people. 

If a handful of progressive billionaires wanted to change the landscape of American politics they could sponsor the relocation of half a million high tech employees from the progressive havens of San Francisco, Los Angeles, Portland and Seattle to beautiful Laramie, Wyoming.  The Democrats could then pick up two seats in the United States Senate and one in the lower house.  The city of Laramie would prosper in the balance. 

Because of the Senate, the citizens of California, New York, Florida and Texas are the least represented in America while the voters of Wyoming, Vermont, Alaska and North Dakota are the most over-represented.  Restated, in terms of senatorial representation, every voting citizen of Wyoming is worth roughly 69 Californians. 

Because the Electoral College allots electors using members of congress plus two for its senators, the imbalance of the senate is also reflected in our presidential elections.  Without that imbalance neither George W. Bush nor Donald Trump would have advanced to the White House.  We would likely not have entered the Iraq War and we would be leading the world in the effort to combat the ongoing catastrophe of global warming. 

Would we be better off?  You can be certain a majority of Americans believe so. 

As if the inherent inequity of the senate were not enough, the senate filibuster rule requires all legislative action to gain a three-fifths or 60-vote majority for consideration.  Unlike the Electoral College, that requirement is not grounded in the constitution.  It is not based on legislation.  It is an invention of the institution that can be undone at the beginning of a session.  In other words, it is a power grab by the most aristocratic institution in government. 

The filibuster has its roots in the early nineteenth century when a senator was allowed to block any vote by taking the floor and holding it for as long as he could speak without leaving the podium.  The filibuster was employed by Southern Democrats to defeat every significant civil rights law from 1917 to 1964. [1]  

In 1917 an incensed Woodrow Wilson pushed through a two-thirds vote requirement to close debate.  That worked for Wilson but it hardly works for us today.  In 1975 the filibuster was redefined for polite society.  A senator no longer has to hold the floor.  He or she can simply invoke the cloture rule and the required votes to end debate have been reduced from 67 to 60.  Now any senator can invoke cloture, killing any bill or measure until 60 senators vote to end the “filibuster.”  What was once a quaint senatorial courtesy has become a potent veto that strengthens the partisan divide and grinds all action to a halt. 

There may have been a time when the filibuster made sense to some but that time has long since expired.  Neither the founders nor the people envisioned granting that much power to the upper branch of congress. 

For decades the filibuster was the weapon of choice to Southern racists and white nationalists.  The infamous Senator Strom Thurmond of South Carolina conducted the longest continuous filibuster in senate history when he stopped a vote on the 1957 civil rights act for over 24 hours.  Under today’s rules that piece of legislation would have died in committee. 

The result is that nothing of substance can be accomplished without a consensus of two adversarial parties that have refused to find common ground since the global financial collapse of 2008.  Maybe that would be acceptable if the nation had no pressing needs but the nation has reached a crucible of pressing needs. 

The cloture requirement or virtual filibuster is why President Barrack Obama dared not propose a public option in the Affordable Care Act.  The filibuster is why neither comprehensive immigration reform nor the Dream Act could be enacted in law.  The filibuster is why our infrastructure has been allowed to crumble.  Who needs passable roads, safe bridges and working highways?  The filibuster is why we have not moved toward renewable energy in a manner that reflects the critical nature of the crisis.  The filibuster is why there has not been any serious effort at gun control legislation since the assault weapons ban of 1994 – allowed to expire in 2004. 

It is time for the United States Senate to join the 21^st century.  It is time for the senate to become a working part of a democratic system of government.  It is time for the senate to sacrifice the tools of aristocracy.  It is time for the senate to stop obstructing progress and start enabling it. 

Electing a Democratic majority in the senate is a necessary but insufficient first step.  If we are to advance the cause of democracy and empower the government to accomplish what must be accomplished, the next step is for the senate to repeal the filibuster entirely and become a more democratic institution. 

Neither the nation nor the world can afford to put up with another term of majority leader Mitch McConnell and the obstructionist senate. 

Jazz.

A SHORT HISTORY OF THE FILIBUSTER

1806:  Senate eliminates rule for ending debate.

1811:  House of Representatives enacts rules to limit debate, ending the filibuster in the lower chamber. 

1841:  Democrats hold the floor to prevent Whigs from firing Senate printer.  William King challenges Henry Clay to a duel.  Clay threatens new rule to cut off debate. 

1846:  Southerners successfully filibuster in favor of slavery in expansion bill.  

1903:  Ben Tillman of South Carolina successfully filibusters to collect a debt of $47,000.

1917:  Senate changes its rules to require 67 votes to end debate. 

1935:  Senator Huey Long of Louisiana holds the floor from noon to 3:50 am. 

1938:  Theodore Bilbo of Mississippi filibusters an anti-lynching bill.  Southern Democrats defeat other anti-lynching bills in 1922, 1935, 1938, 1948 and 1949. 

1949:  Lyndon Johnson filibusters a 1949 civil rights bill saying:  “The filibuster is the last defense of reason, the sole defense of minorities.” 

1950’s:  Less than one filibuster per session. 

1957:  Strom Thurmond opposes a toothless 1957 civil rights act. 

1964:  Robert Byrd of West Virginia concludes a 57-day chain filibuster to hold back civil rights.  The filibuster ends with 67 votes for cloture. 

1968:  GOP defeats the nomination of Abe Fortas as Chief Justice to the Supreme Court. 

1975:  Senate change cloture requirement to 60 votes. 

1987:  Republicans defeat campaign finance reform. 

2007-2008:  139 filibusters affect 70% of legislation. 

2013:  Democrats limit debate to approve judicial nominees. 

2019:  GOP limits debate to approve Trump nominees.  [2, 3]

1. “A Short History of the Filibuster.”  By Peter Carlson.  History Net. Circa 2019. 

2. “Senate Republicans have officially gone ‘Nuclear’ to confirm more Trump judges.”  By Li Zhou.  Vox April 3, 2019. 

3. “How a Filibuster Works.”  By John Kelly.  How Stuff Works, August 26, 2019.