RECLAIMING AMERICA: EXPAND THE ELECTORATE

THE LONG WAY HOME: RECLAIMING DEMOCRACY

EXPAND THE ELECTORATE

By Jack Random

If you believe in democracy, you want to expand the electorate.  You want every voice to be heard.  You want everyone to vote, every vote to count and every opinion to be represented.  If you believe in democracy you fight to break down all barriers to participating in the democratic process.  You make it as easy as possible for every eligible voter to cast a ballot. 

If, however, you are not certain that representative democracy is a viable system of government, then you tend to believe that only the elite and well educated should vote.  You would prefer that the working class, the poor and the minorities – too often victimized by substandard education – sit on their hands at election time.  You would rather their collective votes not be counted in any real sense.  You would rather the “best and the brightest” choose our elected officials.  You would rather the common rabble stay home and watch football, soap operas or reality television. 

This is the dirty little secret of American democracy.  The elite have found ways to carry on the pretense of a functioning, majority-rule democracy while creating and perpetuating a corporate-dominant virtual oligarchy. 

The very last thing the anti-democratic forces want to see is an expanded electorate where everyone or nearly everyone who is entitled to vote actually votes. 

According to the Census Bureau, in 2016 there were an estimated 245 million citizens eligible to vote.  Of that total roughly 158 million were registered to vote, of whom roughly 138 million or 56% of eligible voters turned out to cast their ballots.  While most Americans want to believe that our nation is the world’s shining example of democracy, we rank 26^th on a list of 32 developed nations in voter turnout. [1] 

Those who support the way we conduct our democracy would have you believe that most Americans just don’t care.  Who knows?  Given how unresponsive our representatives are to the basic needs of the people, maybe they don’t. 

They would have you believe that those who do not vote should not vote because they are uninformed and uneducated.  The truth is far more sinister. 

The American system in its current form is designed for low voter turnout.  Virtually every aspect of our election tradition is intended to suppress voters.  We hold our elections on Tuesdays – a day when working people are engaged in labor.  Voting requires workers to get up an hour early or to invest a couple of hours after their working day is done.  We could just as easily hold elections on weekends or during the course of a week or even two weeks.  We could make voting day a national holiday so that no worker would find it difficult to locate his or her precinct and cast a ballot. 

The most recent trend in voter suppression is aimed squarely at the student population.  Activated by climate change, income inequality and the blatant racism of the Trump administration, college and university students have begun voting in greater numbers.  According to the Institute for Democracy & Higher Education at Tufts University, student voting more than doubled from the midterm election 2014 to the midterm 2018.  Consequently, Republicans have found ways to make it difficult to vote in the state where a voter attends school. 

In Austin, Texas, they closed down early voting stations on college campuses.  In Florida they did the same in 2014 but a federal court overturned the ban for 2018.  They are poised to try again.  In New Hampshire the legislature passed a law requiring students to get their driver’s license and vehicle registration within the state.  It is no coincidence that university students vote overwhelmingly for Democrats.  According to an Axios poll, an estimate 75% of students favor impeaching Donald Trump. [2]

It should not matter how the vote breaks down but it clearly does.  Such efforts must be fought relentlessly in the courts and in the court of public opinion. 

In response to Republican voter suppression laws, many states have moved to pass legislation expanding access to the ballot box.  Automatic voter registration laws have been proposed in New Jersey, Washington, Maryland, Massachusetts and Utah.  As noted above, other proposals to expand the electorate include same-day registration, expanded voting periods and election holidays that enable workers to take time off to vote. 

Many states make registering to vote more difficult than it should be and often require documents that they know many eligible voters do not have – most notably photo identification cards.  At present eight states have strict photo ID requirements while ten states have less strict photo ID requirements.  In states controlled by Republican legislatures there is a push for such requirements because they tend to affect poor and minority voters. 

We could make it easy for everyone to register.  The 1993 National Voter Registration Act required the Department of Motor Vehicles to offer voter registration.  Some states automatically register citizens to vote when they get their driver’s license or official identification.  Fifteen states and the District of Columbia offer some form of automatic voter registration.  All states should do so.  Automatic registration should apply not only at the DMV but at banks and utilities or anywhere that requires proof of residency.  Registering to vote should be as easy and convenient as signing a petition outside your local grocery store.  If memory serves me, activist organizations used to do just that. 

It is a peculiarity of the American system that every precinct and every state is allowed to create its own system of voting.  The process and the facilities should be uniform across all states and the District of Columbia.  An economically disadvantaged neighborhood should not have antiquated machines that cannot serve the number of voters in the district.  Every district should have the same machines and same number of machines to serve their voters. 

Some have suggested that voting should be mandatory.  I cannot go that far.  Voting should be considered a civic duty.  Citizens should be proud to vote and should be rewarded for doing so.  Instead, because jury duty lists are generated from the voting list, people are effectively punished for voting.  Proponents of the current system will say that jury duty is not a punishment but as long as such duty is mandatory it is an undesirable consequence of voting.  I suggest that governments should offer tax deductions for voting and jury duty should come from the DMV list. 

We have to change the way our political system works.  We have two parties dedicated to winning at any cost.  If the Democrats could gain advantage by enforcing requirements that would suppress Republican voters, I have no doubt they would do so.  Both parties should concentrate on lifting their own vote totals rather than suppressing the opposition.  Both parties should be dedicated to free and fair elections.  When they abandon that fundamental principle, the voters should exact a very costly penalty at the polls. 

When that happens we will have a stronger and more vibrant republic.  When people are invested in their own government, the nation will be stronger.  When elected officials know that poor people and working people will vote, more of them will listen and respond to their needs.  When more people vote there will be fewer officials who pay homage only to wealthy corporate contributors. 

When every vote counts and every vote is counted, the virtues of democracy will be self-evident and the principles of democracy cherished. 

1. “US trails most developed countries in voter turnout.”  By Drew Desilver.  Pew Research Center, May 21, 2018. 

2. “As student vote surges, so do efforts to suppress it.”  By Michael Wines.  New York Times, October 25, 2019. 

Jack Random is the author of the Jazzman Chronicles – a collection of 99 essays written from the year 2000 to 2014.  He has also authored novels, plays, poetry and short stories. 

RECLAIMING AMERICA: CRIMINALIZE ELECTION FRAUD

RECLAIMING DEMOCRACY:  ELECTION FRAUD

CRIMINALIZE ELECTION FRAUD & DISENFRANCHISEMENT

By Jack Random

     

“The range of voter suppression efforts has been more widespread, intense, and brazen this cycle than in any other since the modern-day assault on voting began.”

Zachary Roth and Wendy R. Weiser

Brennan Center for Justice, November 2018

The year 2000 and the subverted election of George W. Bush reactivated my outrage at social injustice and motivated a barrage of political commentary.  Before then my political consciousness had all but gone dormant.  I was aware but not engaged.  Until then, politics served only as backdrop and undercurrent for my written works. 

For me that election changed everything.  I was incensed at what happened in the state of Florida.  I witnessed the stealing of a presidential election and the spectacle of media belittling criminal activity as the “shenanigans” of the political class.  It was far more than shenanigans.  To anyone who believed in the democratic form of government it was nothing short of treason. 

And the closer we looked the worse it got. 

Not only did an army of political operatives subvert the recount in Florida with staged demonstrations and orchestrated disruptions, not only was the democratic process preempted by the judicial branch, but the story of a deliberate and massive disenfranchisement campaign was ultimately revealed.  Yet no one outside the far left seemed to care.  We didn’t have time for a valid election.  We didn’t have time to right the wrongs of the partisan political operatives who stole the election.  Instead of going to jail those same operatives went to the White House for the next eight years, reaping the rewards of their misdeeds.   

The modern age of disenfranchisement had begun and virtually no one noticed. 

But I noticed.  And others like me noticed.  We did what we could.  We sounded the alarm.  We pleaded with the American public to demand electoral change. 

Then came September 11, 2001.  President George W. Bush proclaimed it the day that changed everything.  It was the day that transformed an illegitimate president into a self-proclaimed war president.  On false pretenses he launched the wars in Afghanistan and Iraq and the pro-democracy movement – along with the environmental movement and every other progressive cause – receded into the backdrop as we turned our attention to war. 

That is the nature of war.  It tends to dominate public consciousness and overwhelms all other issues and concerns.  Maybe that is one reason our presidents are so inclined to engage in war.  Any war will do. 

Nearly twenty years later the so-called “global war on terror” goes on and the problem of mass disenfranchisement remains.  In the election decided by the Supreme Court an estimated four to six million legitimate voters were disenfranchised – many in the deciding state of Florida.  At that time Florida prohibited those convicted of felonies from voting in perpetuity.  The state of Florida used that law – recently repealed by referendum – to purge the voter rolls in predominantly minority communities.  They hired Database Technologies to compare the list of felons and ex-felons with the list of registered voters.  It was ingenious.  The operatives knew that the felon list included a disproportionate number of minority names.  If your name was identical to or even similar to anyone on the felon list you were eliminated from the voters list and denied the right to vote. 

There are many methods of disenfranchisement, including unreasonable identification requirements, inadequate voting facilities in minority districts, changing the polling place at the last moment and failing to notify voters, providing false information and providing an inadequate number of ballots as well as purging the voter rolls.  Were it not for disenfranchisement it is highly probable that Bush would have lost not only in 2000 but in 2004 as well.  Those who are old enough might recall the long lines of African Americans in the critical state of Ohio in 2004.  That was not a coincidence.  It did not happen in the precincts where the white upper middle class voted.  It happened in the poor neighborhoods where minorities voted. 

After the debacle of 2000 you would have thought there would be a wave of reforms to prevent disenfranchisement.  The reality was precisely the opposite. [1] Political operatives realized they could steal elections and get away with it.  Even if they were caught with their hand in the ballot box – or on the voter roll – the worst that could happen would be a scolding by the talking heads on CNN or MSNBC.  In short, the rewards far outweighed the risks. 

As the 2020 election looms the operators deserve kudos for creativity in denying the right to vote.  In North Dakota Republicans passed a requirement that voter identification include a residential mailing address, knowing that Native Americans often lack that requirement.  Texas and Wisconsin also passed new identification requirements designed to repress the minority vote. 

An appellate court temporarily struck down a sweeping voter suppression law in North Carolina but the authors and sponsors of that legislation faced no real consequences – or rather no negative consequences.  Thom Tillis, the speaker of the state house responsible for guiding the bill to passage was elected to the United States Senate.  Moreover, provisions in that law will be in effect during the next election cycle. 

In New Hampshire the legislature passed a bill designed to suppress the student vote by prohibiting student voting in the precincts of their college or university.  In Georgia the senate passed legislation cutting voting hours and restricting early weekend voting. 

It seems the battle for voting rights has become strictly partisan and is being waged on a state-by-state basis.  Is this any way to run a democracy? 

We have no recourse at present but to continue the battle in the state legislatures.  But the goal and the only long-term solution is to pass federal legislation that upholds voting rights and criminalizes attempts to obstruct those rights. 

What would happen if the operators who design and promote disenfranchisement schemes were subjected not only to severe financial penalties but also to criminal prosecution?  The executives that ran the great disenfranchisement in Florida should have faced prison sentences for defrauding the election of a president.  Governor Jeb Bush and Florida Secretary of State Katherine Harris should have faced criminal conspiracy charges. 

How different our electoral system would look today if those who attacked the very heart of the republic had paid the consequences.  The Karl Rove’s and Corey Lewandowski’s of the world should have lost their livelihoods and fallen into the pit of disrepute where traitors, cheaters and frauds belong. 

Instead of looking for ways to cheat the system, the Republican Party would have been forced to expand its franchise to include minorities.  Who knows?  Maybe they would have passed a comprehensive immigration reform bill.  Maybe they would have sacrificed some small fraction of their loyalty to the wealthiest of Americans to help the little guy.  Maybe they would have found a way to throw an occasional crumb to workers – like passing a $15 minimum wage. 

But who needs to expand the voter base when you can manipulate the voter roles, suppress the minority vote, harvest and alter absentee ballots, promulgate false information through election day robocalls, hack voter registration lists, alter ballots or find as yet untried ways of winning elections without a majority of votes. 

Until there is a stiff price to pay for defrauding democracy, disenfranchisement and voter suppression will continue to be accepted practices in the fine art of politicking.  As long as political operatives face minimal consequences for cheating the ballot, we will continue to have illegitimate representatives in both congress and the White House.  Until we stop rewarding anti-democratic practices, American democracy will fall short of the mark. 

“How the 2000 Election in Florida Led to a New Wave of Voter Disenfranchisement.”  By Ari Berman.  The Nation, July 28, 2015. 

“This is the Worst Voter Suppression We’ve Seen in the Modern Era.”  By Zachary Roth and Wendy R. Weiser.  Brennan Center for Justice, November 2, 2018. 

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.